COURT FILE NO.: CR16400006670000

DATE: 2019/01/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

– and –

CAMERON MCCAW

Defendant

Patricia Garcia, for the Crown

Joshua Frost, for the Defendant

HEARD: May 29 - 31, June 4, August 7, 16, September 12-14, 17-21, 24 and 25, 2018

SPIES J.

REASONS FOR JUDGMENT

Overview

[1] The defendant, Cameron McCaw, stands charged that on July 12, 2015 he sexually assaulted K.B., contrary to s. 271 of the Criminal Code. He re-elected trial by judge alone and pleaded not guilty to the charge.

[2] At the outset of the trial, Mr. McCaw brought an application seeking an order from this Court affirming that s. 33.1 of the Criminal Code is of no force and effect in Ontario, as having been previously determined to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (Constitution Act). In the alternative, Mr. McCaw sought an order, pursuant to s. 52(1) of the Constitution Act, declaring s. 33.1 of the Criminal Code invalid and of no force and effect, as being inconsistent with ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms (“Charter”) in a manner not justified under s. 1. Mr. McCaw wished to rely at trial on a defence of automatism via self-induced extreme intoxication as a result of consuming alcohol, marijuana and gamma-Hydroxybutyrate (“GHB” or “G”), but the operation of s. 33.1 of the Criminal Code would have made this defence unavailable to him.

[3] On June 4, 2018 I advised counsel and Mr. McCaw that I had decided to grant the relief sought by Mr. McCaw in his application. In particular, I made an order allowing the application, and affirming that s. 33.1 of the Criminal Code is of no force and effect in Ontario, as having been previously determined to be of no force and effect pursuant to s. 52(1) of the Constitution Act. In the alternative, pursuant to s. 52(1) of the Constitution Act, I declared s. 33.1 of the Criminal Code of no force and effect, as it is inconsistent with ss. 7 and 11(d) of the Charter, and that it is not saved by operation of s. 1 of the Charter. On August 2, 2018 I released written reasons for my decision: see R. v. McCaw, 2018 ONSC 3464.

[4] After argument of the application, I heard the evidence of D.C. Patching, who was the Scenes of Crime Officer who collected evidence and took pictures of the scene of the alleged sexual assault; Ms. K.B.; her former boyfriend, Mr. S.L., who was Mr. McCaw’s roommate at the time of the alleged sexual assault, and another friend of Mr. S.L.’s; Mr. M.H., as part of the Crown’s case. Given my ruling, after these Crown witnesses testified, it was agreed that the trial would be adjourned until September 2018 so that Mr. McCaw could obtain the expert opinion evidence he needed to advance his defence of automatism. When the trial resumed, I heard from Mr. McCaw, Mr. C.A. and Mr. J.B. In addition, the Defence called two experts and the Crown called two experts in reply. It is unfortunate that because of the constitutional challenge, the trial had to be bifurcated. To assist me in reaching my decision I had the benefit of transcripts so that I could carefully review all of the evidence that I heard in May and September before reaching my decision.

The Issues

[5] There was no dispute that for some period of time on July 11, 2015, a Saturday night, Ms. K.B., her boyfriend Mr. S.L., their friend Mr. M.H. and Mr. McCaw were together in the two-story apartment Mr. S.L. and Mr. McCaw shared. There was also no dispute that in the early morning hours of July 12th, after Mr. M.H. left, Mr. McCaw had sexual intercourse with Ms. K.B. while she was lying on the coach in the living room and Mr. S.L. was sleeping in his bedroom upstairs. Ms. K.B. testified that she was passed out on the couch from having consumed too much alcohol and that she came to and realized that Mr. McCaw was having sexual intercourse with her without her consent. Mr. McCaw testified that he had no memory of having sex with Ms. K.B. until the point when he ejaculated inside her. It is his position that he was in a state of automatism having used marijuana and having consumed alcohol and GHB and that he was not acting intentionally or voluntarily.

The Evidence

Background relationship of the witnesses

[6] At the time of the alleged sexual assault, Ms. K.B. was 18 and Mr. S.L. was 20 years old. By the time of the trial they were no longer dating. Mr. McCaw was 26 at the time of the alleged sexual assault.

[7] The apartment Mr. S.L. shared with Mr. McCaw was at XXX Marlee Avenue, in the city of Toronto, above a bar that was at street level. Mr. S.L. and Mr. McCaw met in the middle of March 2015 through a mutual friend and at the beginning of April 2015 Mr. McCaw moved into Mr. S.L.’s two-bedroom apartment. Ms. K.B. met Mr. McCaw at this time.

[8] Mr. S.L. and Mr. McCaw had only known each other for four months by the time of these events. They both described their relationship as good and Mr. S.L. said that they were “definitely friendly” with each other.

[9] Ms. K.B. and Mr. McCaw both testified that they were not friends; they just knew each other because of their relationship with Mr. S.L. Mr. McCaw testified that Ms. K.B. was over four to five nights a week, and so he saw her frequently, but they didn’t necessarily hit it off like he and Mr. S.L. did.

[10] Mr. McCaw said that Mr. S.L. would often have people over to the apartment and then it was pretty much like partying and that he would do the same. On those occasions, they would hang out with each other and each other’s friends in the apartment, and they would be drinking more than just a couple of casual beers and they would also do drugs together.

[11] Mr. McCaw had also done some socializing with Mr. S.L. and Ms. K.B. outside of the apartment at an after-hours club called Comfort Zone and at Cherry Beach, although Ms. K.B. said that she didn’t voluntarily socialize with him because Mr. McCaw would just “tag along”.

[12] At the time of the incident, Mr. M.H. was 26 years old. He and Mr. S.L. had been friends for about one year and he knew Ms. K.B. for the same length of time. He testified that he is still friends with Mr. S.L. and “sort of” friends with Ms. K.B. although he doesn’t talk to her as much as he used to, because she and Mr. S.L. broke up.

[13] Mr. M.H. knew Mr. McCaw as Mr. S.L.’s roommate. They were not friends but he had socialized with him in a group setting once or twice when he was with Mr. S.L. He had never socialized with Mr. McCaw; only with Mr. S.L. and Ms. K.B., and he had not hung out with Mr. McCaw at a club. Mr. McCaw’s evidence was consistent with this - he knew Mr. M.H. as a friend of Mr. S.L.’s, who he had hung out with on more than one occasion. There is no dispute that Mr. M.H. and Mr. McCaw had never hung out together before the night of the alleged assault.

The witness’ prior alcohol and drug use

(a) Mr. McCaw

(i) GHB incident in November 2014

[14] Mr. McCaw testified that he had consumed GHB a handful at times; maybe five, before July 11, 2015, in order to get high. Mr. McCaw testified that traditionally (as far as he knows) G is consumed from a water bottle poured into a water bottle cap and then that is taken as a single dose. In the times he used it prior to July 11, 2015, that is how he consumed it - save for one time, when in November 2014, it was given to him in a small jam jar and he had nothing to measure it out with. In that case, he just tried to take a conservatively small dose. Otherwise he used a bottle cap from a 500ml water bottle.

[15] Mr. McCaw described a serious GHB overdose he experienced in November 2014, when he consumed GHB from a jam jar and the Defence called his longtime friend, J.K. J.B., who witnessed it. Mr. McCaw’s roommate at the time, Gord, who also witnessed this incident, was not called as a witness. This evidence was important to a number of issues including how Mr. McCaw reacted after exposure to GHB, what quantity of GHB caused him to overdose and why he would ever use GHB again.

[16] Mr. McCaw testified that he and Mr. J.B. drank a 26 oz. bottle of Jameson’s Whiskey between the two of them. He believes he was trying to get MDMA (aka ecstasy) that night but he was having trouble getting in touch with anyone, and so he reached one person who advised him that he only had GHB. Mr. McCaw asked him to bring the GHB over and this person did so. Mr. McCaw consumed some of the GHB but he did not remember if Mr. J.B. did or not. He remembered sipping the GHB from the jar without pouring it into anything to measure it, at least three times. Eventually he didn’t remember anything of what happened until he woke up at Sunnybrook Hospital. When he woke up in the hospital, he was fairly confused and didn’t know where he was although he said that he clued in in a couple of seconds. Mr. McCaw did not remember being in the ambulance. Mr. McCaw was told in the hospital that he ended up needing to be resuscitated and that for a brief period of time his heart had stopped.

[17] Mr. McCaw testified that he had taken GHB a couple of times before this experience and that he took GHB a couple more times after this experience but he said that he had then been “very cautious”. He was not “super comfortable with taking GHB”. This hospital visit was a horrifying visit for him - it was a wake-up call. This reaction to GHB did not happen to him at any other time.

[18] Mr. J.B. believed that Mr. McCaw started drinking early after 12 noon although he would not have known that as he said that he arrived around 3 or 4:00 p.m. Mr. J.B. confirmed that he and Mr. McCaw finished off the bottle of Jameson’s by 7 or 8 p.m. but he said he was not a heavy drinker and that he only had four shots out of the bottle; about four ounces. He assumed Mr. McCaw drank most of the full bottle of whiskey. Gord was not drinking.

[19] Mr. J.B. testified that the drug dealer got to the apartment around 6 or 7 p.m. and he recalled that the GHB came in a small, three inch tall Mason jar that was about half full of a clear liquid. In cross-examination he admitted that he didn’t know how much was in the jar to begin with and that he was not part of the exchange with the drug dealer.

[20] Mr. J.B. didn’t approve of GHB, which he said was technically boat cleaner and did not use it. Mr. J.B. testified that he was sitting on the couch just dozing off. He believed that Mr. McCaw consumed the GHB but didn’t know how. However he also testified that although Mr. McCaw’s back was to him, as Mr. McCaw was sitting at his computer and Mr. J.B. was on the couch, that he saw Mr. McCaw “sipping” the GHB and that he believed he sipped it three to five times from a bottle cap. Mr. J.B. admitted in cross-examination that he didn’t recall the exact number of times that Mr. McCaw sipped the GHB because he wasn’t paying attention like a hawk. He also admitted that he didn’t recall Mr. McCaw actually ingesting the GHB, or even if he used a bottle cap, but when they found the jar at the end of the night it had just a “splash” left in it. He admitted that if Mr. McCaw consumed a half jar of GHB that would be a big difference from three to five sips.

[21] Mr. J.B. testified that at some point he saw Mr. McCaw sitting with one leg up on his other knee and he was leaning over and he was “kind of collapsing but like snapping back up”. His movement was very jerky, like he was nodding off but more extreme. This lasted about half an hour until he fell straight onto the floor. Mr. J.B. testified that then he and Gord were trying to wake him up but after he got Mr. McCaw to stand up, he fell down and collapsed and he got him up again. Although Mr. McCaw could walk and move, Mr. J.B. said he was kind of “zombified” in that Mr. McCaw’s body was functioning but it was like his brain wasn’t functioning - he wasn’t answering them, even though they were calling out to him and trying to get him to respond.

[22] Mr. J.B. and Gord got Mr. McCaw upstairs so they could try to wake him up with cold water but it took a very long time. Mr. J.B. said it was almost like leading a blind person. In cross-examination, Mr. J.B. admitted that on his own, Mr. McCaw would not have been able to find the bathroom or the bathtub, and that they stopped him from falling down.

[23] When they got Mr. McCaw into the bathtub and splashed some cold water on his face, he shot straight up out of the tub and dove into a chair that they had in the hallway for him to sit down on and he completely destroyed it. This was the first reaction they got out of him, which Mr. J.B. agreed was combative. Mr. J.B. testified that he slapped Mr. McCaw in the face three or four times, and he was repeatedly telling him to wake up, but he was still unresponsive to his questioning. Mr. J.B. then poked Mr. McCaw with a pin on the top of his wrist but he didn’t flinch. At that point, he decided they had to call an ambulance. Mr. J.B. estimated it was about five or six hours from the time Mr. McCaw passed out to when he called the ambulance. Mr. McCaw was breathing okay and his pulse was fine and Mr. J.B. testified that he didn’t want to call sooner because there were drugs involved and he didn’t want to get charged for anything.

[24] In cross-examination, Mr. J.B. testified for the first time that he remembered that, as he was outside smoking during the court break, that Mr. McCaw was also hanging from the arch of the bathroom door and swinging back and forth on the door while they were getting water in the tub.

[25] The firefighters showed up first, and when the firemen lifted Mr. McCaw up, Mr. McCaw asked what was happening and what they were doing. Four of them lifted him up – one under each arm, and one under each knee.

[26] Ms. Garcia took Mr. J.B. to the Sunnybrook Hospital records for Mr. McCaw’s admission. When he saw the records, he said that his timeline was clearly flawed, because based on the hospital record Mr. McCaw was done taking GHB at 6:00 a.m. and at by 7:30 a.m. the ambulance was there. In light of this Mr. J.B. admitted then that it was probably 3 a.m. in the morning when the GHB arrived and that it was about an hour and a half before he called the ambulance. He explained that it just seemed a lot longer.

[27] Mr. J.B. testified that he and Gord spoke to the firefighters and paramedics but he did not believe that they were standing side by side at the time. The paramedics that Mr. J.B. spoke to were the paramedics that were in the ambulance Mr. McCaw was in and he admitted that he was the one talking to those paramedics about what Mr. McCaw took and how much he took. He knew that the paramedics needed the best information and admitted that he was “very open with them, because they needed to know so they could help my friend”. He said he was being honest and doing his best to help them help his friend.

[28] Mr. J.B. admitted that he told the paramedics that Mr. McCaw had taken “three tablets” of GHB. He admitted that his memory at the time when he was speaking to them, moments after his call, was fresher than it was in court. However, when Ms. Garcia asked Mr. J.B. if he agreed that Mr. McCaw took three doses of GHB, he maintained that it was around three to five. It was his position that he didn’t sign the record and so he didn’t know if the statement in the record was his or Gord’s statement. He then admitted that he did say three at the time and that he had no memory of telling them that Mr. McCaw had more than three doses of GHB. He qualified that answer by adding that he didn’t remember exactly what he told them. Mr. J.B. agreed that the difference between three and five doses is important, but he said that he was not watching every single dose Mr. McCaw took because he was in and out of the room and was upstairs and downstairs.

[29] The hospital record also states that “friend states that pt [Mr. McCaw] drank half a bottle of whiskey” and Mr. J.B. admitted he has no memory of telling the paramedics that Mr. McCaw had had more than half a bottle of whiskey.

(ii) Spring/summer of 2015

[30] Around July 2015, Mr. McCaw smoked marijuana daily through a glass water pipe; a bong. He didn’t smoke before going to work, but after work he would come home and it was probably the first thing he would do. He would then smoke marijuana until bedtime. On weekends he would smoke marijuana from morning until night and he testified that he had been in this pattern of consumption for almost a decade. When asked how much marijuana he smoked in a day, Mr. McCaw said it fluctuated. On weekdays he generally smoked less than a gram, and on weekends, perhaps double that.

[31] In terms of alcohol consumption in the same time frame, Mr. McCaw testified that on weeknights he would come home with usually two and at times three tall cans of beer and on weekends he would drink more. Beer was his alcohol of choice, but if it wasn’t available, he would drink wine. He didn’t tend to drink liquor. He preferred to consume alcohol and marijuana at the same time as they did slightly different things for him and he did this pretty much daily. If he only did one or the other, he would notice the absence of the other.

[32] With respect to GHB, Mr. McCaw said it had never been his first choice. It had always been offered to him and he accepted it, as opposed to something he had the intention of using. When asked what kind of high GHB gave him, Mr. McCaw said that it was kind of like a chemical drug and was most similar to alcohol than any other drug he could compare it to. It made him kind of “wobbly”, and it effects were similar to alcohol.

[33] Mr. McCaw testified that prior to July 11, 2015 he only ever consumed drugs with other people. This included Ms. K.B., Mr. S.L. and Mr. M.H. Mr. McCaw testified that he did GHB with Mr. S.L. twice - one time was at Comfort Zone with Mr. S.L. and possibly Ms. K.B. He couldn’t remember if Mr. M.H. was there. He said there was also an earlier time in 2015 at Cherry Beach when he consumed GHB with all three of them but he then added that he couldn’t remember if Mr. M.H. was there at that time. Mr. McCaw testified that he was uneasy about doing G because of his past experience.

[34] Mr. McCaw also testified that he and Mr. S.L. did MDMA fairly frequently as they both liked that. However in his evidence in chief Mr. S.L. testified that he did not think he had ever seen Mr. McCaw take ecstasy although he did say he was not sure. He was not asked about this in cross-examination.

[35] Mr. S.L. testified that he had never seen Mr. McCaw take GHB before July 11, 2015 and he imagined ecstasy and GHB were different things. Prior to July 11, 2015, Mr. S.L. testified that he was familiar with Mr. McCaw’s daily marijuana use and that he saw Mr. McCaw smoke cannabis from a bong and drink alcohol although he did not know if he saw him do so at the same time. He did see Mr. McCaw “intoxicated”, by which he meant Mr. McCaw was less coherent with changes in his mood, mindset and his behaviour. To that he added, being more open or outgoing, more talkative, and potentially acting a bit more radically.

[36] Mr. M.H. testified that he had not seen Mr. McCaw take drugs that he knew of. He had seen him drink alcohol, but had not seen him drunk.

(b) Ms. K.B.

[37] Ms. K.B. is 5’3” tall and at the time of the alleged sexual assault she weighed around 120 lbs. She testified that she was not a huge drinker at the time and would generally only drink beer because she couldn’t keep hard alcohol down - she would vomit it up. She described herself as a bit of a “lightweight back then” – she got drunk pretty easily.

[38] Ms. K.B. admitted that she did G with Mr. S.L. probably two to three times between March and July 11, 2015. She testified that it doesn’t taste good and that it d “kind of makes you feel drunk. The same as alcohol”. When Ms. K.B. consumed G, she poured it into a bottle cap like the top of a 500 ml water bottle and she would drink it from the bottle cap (“cap”). Ms. K.B. testified that on those occasions when she did G with Mr. S.L. it did not cause her any memory problems.

[39] Ms. K.B. also admitted that she had smoked marijuana about five times before July 11, 2015. She testified that she and Mr. S.L. weren’t really into weed because it makes you kind of paranoid. Mr. McCaw agreed that Mr. S.L., Ms. K.B. and Mr. M.H. were not really marijuana smokers.

(c) Mr. S.L.

[40] Mr. S.L.’s preferred beer at the material time was Kronenbourg and he was not asked about his alcohol tolerance. In cross-examination Mr. S.L. admitted that he had done G maybe once or twice before the incident with Ms. K.B. Mr. S.L. also admitted that at that time, they were all going through a rather experimental phase and doing a lot of drugs on the weekends.

(d) Mr. M.H.

[41] The Crown witnesses were not asked how often they hung out with Mr. M.H. I note he was a few years older than Mr. S.L. and Ms. K.B. Mr. M.H. admitted that he had been to Comfort Zone to consume marijuana. He denied ever using or coming into contact with GHB before. He said that he had heard of GHB and knew that it was called “the date rape drug” but that that was all he knew about it.

[42] Mr. M.H. testified that he had seen people do GHB in the club but that he had not seen Mr. S.L. or Ms. K.B. consume GHB that he knew of. Neither Ms. K.B. nor Mr. S.L. testified that Mr. M.H. was present on the one to two occasions when they used GHB. Mr. S.L. thought Mr. M.H. had done G before but he did not remember if he had done G before with him.

(e) Mr. C.A.

[43] Mr. C.A. testified that Mr. S.L. was one of his best friends and that Ms. K.B. was a good friend. Mr. C.A. was also a friend of friends of Mr. S.L. and Ms. K.B. and other people. He testified that he knew Mr. M.H. and had seen him around the Comfort Zone before and had hung out with him elsewhere. Mr. M.H. testified that he had heard the name C.A. before, that he was a friend of a friend and he had seen once or twice.

[44] At the time of the incident Mr. C.A. testified that on a weekly basis, in addition to alcohol, he was using all of what he described as “general recreational club drugs”, including weed, MDMA, cocaine and GHB.

[45] Mr. C.A. did not testify about consuming GHB with Mr. S.L. or Ms. K.B. generally. He only testified about one time when Ms. K.B. was present, as I will come to. Mr. C.A. said initially that he must have done G with Mr. M.H., but he then agreed he had no specific memory of doing so, or of Mr. M.H. doing a shot of G in his presence.

[46] Mr. C.A. testified that he found out that Ms. K.B. was assaulted around two weeks to a month after the assault because someone accused him of raping her, given his first name is C. He said that it was so blurry that he thought the assault was after Mr. S.L. and Ms. K.B. broke up.

[47] The theory of the Defence is that Mr. C.A. left a water bottle of GHB behind in the apartment a few days before July 11, 2015 and that Ms. K.B., Mr. S.L., Mr. M.H. and Mr. McCaw consumed that GHB during the night of July 11th.

[48] Mr. Frost told Mr. C.A. that the event he wanted to ask him about occurred before he heard that Ms. K.B. had been assaulted. Mr. C.A. gave evidence about a particular day that he remembered that was in the summer, sometime in May to July, when he and his friends were all going to meet up and go to the beach or a party on the beach. He recalled that on that occasion, he went to someone’s apartment and that Ms. K.B., Mr. M.H. and another bigger girl, who he believed to be a friend of Ms. K.B.’s, and Mr. McCaw were present. He didn’t think Mr. S.L. was there. He was not asked if it was a weekday or weekend.

[49] Mr. C.A. was not clear on whose apartment it was, and in fact, said that he thought the apartment belonged to the bigger girl who was there. Eventually after he was shown some photographs of the building where the apartment Mr. S.L. and Mr. McCaw were sharing at the time was located and photographs of the inside of that apartment, he testified that he was “relatively confident this is the spot” or at least the building this apartment was in.

[50] They were doing some “pre-drinking” and Mr. C.A. testified that he would have been doing G, as at time he had been doing G pretty regularly for one to two years; one to two times per week, getting high every weekend. Mr. C.A. testified that for him, one cap of G was like having seven or eight shots of liquor.

[51] Mr. C.A. was “pretty confident” that on that day he brought GHB in a water bottle to the party – it would have been half full; at most 250 ml of GHB. He would have also brought some in a five-hour energy bottle (he suggested they held 60 ml) as they could more easily be smuggled into places. He would have filled the energy bottle from the water bottle. From that, he would have taken maybe five caps of G and he would have given out one to two caps to each of the four people present.

[52] Mr. C.A. admitted that he was high at the time. He believed he would have also had two to three beers over the afternoon. He testified that you get “fucked up” if you take G and alcohol but he could do it because of his tolerance and how long he had been using G.

[53] Mr. C.A. testified that he did not know what happened to the GHB at the end of the day. He did not recall if he took it with him to the beach, although he would have intended to do so. Mr. C.A. said that he loses a lot of things and constantly leaves bottles behind.

[54] Mr. C.A. was not qualified as an expert although he was very candid about his experience using GHB. I found his evidence as to how he purchased G to be helpful. He testified that you wouldn’t buy a bottle of GHB that was ¾ full – rather, he would buy a half bottle or a full bottle. Mr. C.A. also testified that because G is a homemade drug its strength can vary quite intensely.

[55] Mr. C.A. went on to testify about his experience building tolerance to G and the amount of G it would take to “G-out” and going unconscious for an inexperienced user of G. Although I accepted that he was telling me the truth, I did not rely on this evidence as he was never formally qualified as an expert.

[56] Ms. K.B. did remember Mr. C.A. bringing GHB to the apartment one time before the incident; although she didn’t think it was a few days before the night of July 11/12, 2015 as she would have been working the days before that weekend and so in the few days before the weekend it was not possible that she did GHB with Mr. C.A.. She testified that Mr. C.A. was over quite a bit and that it could have been anytime between March and July when he brought G to the apartment. She admitted however that it was possible that Mr. C.A. brought G to the house a few days before July 11/12th. She was not asked if she consumed it at that time.

[57] Mr. Frost put to Mr. S.L. that Mr. C.A. had brought over some G in a water bottle in the days before July 11, 2015. Mr. S.L. testified that he didn’t remember that, although he knew that Mr. C.A. typically had those kinds of drugs on him - i.e. the harder substances, including ecstasy, GHB and cocaine. He said that he could see Mr. C.A. bringing ecstasy to the apartment, but he didn’t remember. He thought he had been there in the past maybe once or twice. He didn’t remember hanging out with Mr. C.A. at other places.

[58] Mr. M.H. testified that Mr. C.A. was an acquaintance and a friend of Mr. S.L.’s and Ms. K.B.’s and that he saw Mr. C.A. once or twice. Mr. Frost put to him that Mr. S.L. had said that Mr. C.A. sold drugs and Ms. Garcia objected as that was not Mr. S.L.’s evidence. Mr. Frost then asked if Mr. M.H. knew that and he said that he met Mr. C.A. only once or twice and that he never knew that he did drugs. Mr. Frost did not ask Mr. M.H. if he remembered being at the apartment a few days earlier when Mr. C.A. was present and people there were consuming GHB that Mr. C.A. brought.

[59] Mr. McCaw did not give any evidence about Mr. C.A. coming to the apartment in advance of July 11, 2015 and bringing GHB. When Ms. Garcia put to him that this was his position, he testified that the furthest he could go was that Mr. S.L. told him that he had. He was referring to his evidence that when he handed the bottle to Mr. S.L., Mr. S.L. told him that it was Mr. C.A.’s and that it was GHB. He admitted that he did not have any memory of seeing Mr. C.A. bringing the bottle of GHB.

The day of July 11, 2015 for Mr. McCaw

[60] July 11th was a Saturday and Mr. McCaw testified that he did not have to go anywhere or do anything that he remembered and he did not have any specific plans for that night. Mr. McCaw had no idea what time he woke up on that day. The first thing that Mr. McCaw remembered was sitting down at his computer desk in the living room making electronic music on his computer, late afternoon or the evening, like 4:30 to 5:30 p.m. but he admitted that this was really just a guess. Timing was very difficult for Mr. McCaw to pin down. He didn’t believe he would have just woken up at 4:30 p.m., but admitted it was possible.

[61] The first time Mr. McCaw recalled smoking marijuana was when he sat at his computer desk composing music. When he was alone, he would say that he smoked marijuana every 30 minutes to an hour. When he was with other people, it was closer to every two hours. Each time he would smoke an entire bowl from his bong, which would be .1 gram of marijuana.

[62] Mr. McCaw did not have a clear memory of the amount of marijuana that he smoked on July 11/12th save that he did not smoke marijuana when they went out to the bar. When asked to estimate how much he smoked on July 11th until he woke up on top of Ms. K.B., he said it was probably 1.5 grams of marijuana, but he added that it was very difficult to say; it was just his best approximation. He gave more evidence that took into account what he smoked on the 12th but it did not alter this estimate.

[63] Mr. McCaw smoked marijuana so frequently at this time that he got marijuana that was high in potency so it would have some effect on him that was desirable. He testified that the marijuana that he smoked on July 11th wasn’t the strongest that he had ever smoked, but it was strong enough for a habitual user like himself it would still have an effect.

[64] As for alcohol, Mr. McCaw’s first memory was drinking wine at his computer in the 4:30 to 5:30 p.m. timeframe, although he testified that he had very little ability to say definitively what time he began drinking. He was sitting at the computer for several hours making music, and he did not know when during that time he began drinking. Later in his cross-examination, Mr. McCaw said that 4:30 to 5:30 p.m. was his best estimate of when he sat down at the computer but that it was possible that he waited several hours before he drank the wine while he was only smoking marijuana. He said that it sounded too long to say that he had been drinking from between 6:30 and 11:00 p.m. – a period of five and one-half hours but he admitted that he had no idea.

[65] Mr. McCaw’s best estimate was that he drank a litre of wine over a period of several hours before Mr. S.L. and Ms. K.B. came back, as that was the only alcohol that he had in the house. The wine was a four-litre box, and he estimated that about a litre was left based on how it weighed when he picked it up. Mr. McCaw was sure that he had more than once glass of wine. The beers in the fridge did not belong to him and he testified that he wouldn’t drink something that wasn’t his. He didn’t want to offend Mr. S.L. about something as small as taking one of his beers. He also agreed it was presumptuous to take something that didn’t belong to him, and he wouldn’t do that to a roommate that he had a good relationship with.

The pool party

[66] There is no dispute that on July 11, 2015, Ms. K.B. and Mr. S.L. went to a pool party together. Ms. K.B. testified that they left to go to the party around 5:30 p.m. but according to Mr. S.L., he and Ms. K.B. arrived at the pool party between 2 and 4 p.m. They both testified that they had not had anything to drink nor had they consumed any intoxicating substances before going to the party. Mr. S.L. testified that they brought a half dozen “tall boy” containers of alcohol; beer and coolers to the party. The evidence was that a “tall boy” can is a little less than a half litre in size.

[67] At the pool party, Ms. K.B. estimated that she had two or three tall boy beers and about seven one ounce shots of alcohol; she believed whiskey. She did not consume any drugs; including marijuana at the party and she did not think that she had anything to eat at the party either.

[68] Ms. K.B. testified that there were a lot of drinking games at the pool party and that Mr. S.L. was participating in a lot in those games. She only participated in a few. Although there is no dispute that Mr. S.L. was drinking at the party, he did not remember any drinking games there. He testified that he drank beer, coolers and some hard liquor that was at the party. He wasn’t sure how much of the hard liquor he drank- he didn’t think he drank too much of it, but he admitted that he did have a few shots “here and there” of either rum or vodka. Ms. K.B. testified that she did not pay any attention to what Mr. S.L. was drinking at the pool party.

[69] According to Ms. K.B., she and Mr. S.L. were at the pool party until 10:30 p.m. After leaving the pool party they went back to Mr. S.L.’s apartment. She was not paying any attention to the time they arrived back at the apartment but she guessed it would have taken them about a half hour to get there by TTC, which would put it at 11 p.m. This is consistent with Mr. S.L.’s evidence as he estimated that they left the party between 10 and 11 p.m. and arrived back at the apartment around 11:00 to 11:30 p.m.

[70] Mr. M.H. put the return of Ms. K.B. and Mr. S.L. to the apartment a little earlier. He testified that when he arrived at the apartment at around 10:30 p.m. Mr. S.L., Ms. K.B. and Mr. McCaw were there. Mr. McCaw’s original estimate was that Ms. K.B. and Mr. S.L. got home around 9 o’clock, and that Mr. M.H. arrived around 10:30 p.m. with the mattress but he also said that it could have been as late as 10 p.m. when Mr. S.L. returned. He testified that he did not look at his watch and that this was his “best guess”. He also said that he was basing this time on the fact that when they returned it wasn’t much after dark. Since it was mid-July Mr. McCaw admitted that it was very possible that Ms. K.B. and Mr. S.L. got home around 11 p.m.

When did Mr. M.H. arrive at the apartment

[71] There was no dispute that Mr. McCaw was in the apartment when Ms. K.B. and Mr. S.L. got back. There was also no dispute that Mr. M.H. came to the apartment that night to drop off a mattress for Mr. S.L..

[72] The witnesses did not agree on when Mr. M.H. arrived at the apartment. For reasons I will come to, that is an important factual issue. Mr. M.H. testified that when he arrived, Ms. K.B. and Mr. S.L. were already at the apartment and that he met them downstairs and they helped him move the mattress from his car upstairs into Mr. S.L.’s bedroom. This is consistent with the evidence of Ms. K.B. who recalled that Mr. M.H. was waiting at the apartment for them when she and Mr. S.L. got home although she also testified that she wasn’t sure about this. Mr. S.L. recalled that only Mr. McCaw was in the apartment when they returned. He testified that Mr. M.H. came over about 20 to 30 minutes after they got home; maybe around midnight. As I will come to, Mr. McCaw testified that Mr. M.H. arrived about an hour after Mr. S.L. and Ms. K.B.

[73] I find on this evidence that Mr. M.H. arrived between 30 to 60 minutes after Ms. K.B. and Mr. S.L. returned to the apartment.

The state of the witnesses at 11 p.m. on July 11th

[74] Ms. K.B. testified that she consumed alcohol over five hours at the pool party but if Mr. S.L.’s recollection of when they left to go to the party is correct, it would have been longer; closer to eight hours. In any event the evidence is clear that they were both intoxicated to some degree by the time they got back to the apartment. Ms. K.B. testified that she was “very drunk” by the time they got back and that once she was back, she was having a good time with friends, was happy and more talkative. Mr. S.L. testified that he would say that she was “drunk”.

[75] Although Mr. S.L. admitted that he may have drunken more than Ms. K.B. and that he was also drunk, he said that he wasn’t overly intoxicated and was in full control of his body. Ms. K.B. thought that Mr. S.L. was probably as drunk as she was and described his state once they were back at the apartment as more relaxed, louder and stumbling around a little bit. Mr. M.H. testified that when he arrived at the apartment, he saw that Mr. S.L. and Ms. K.B. were intoxicated. Their speech was a little bit slurred and Ms. K.B. was a little bit wobbly. Mr. McCaw assumed Ms. K.B. and Mr. McCaw had been drinking because they were coming back from a party and he remembered that they were “lively”, but he did not have any more memory of their state. However he also testified that they didn’t seem “super drunk or anything like that”. I had trouble believing that given the evidence of the others.

[76] Mr. McCaw said that by the time Ms. K.B. and Mr. S.L. came home, he was intoxicated, but he didn’t remember “feeling very much so” - he could walk and speak and he knew what was going on around him. According to Mr. M.H., when he arrived at the apartment Mr. McCaw was “pretty normal”. Ms. K.B. testified that Mr. McCaw may have been smoking marijuana but she did not remember if he drank any alcohol - to her he did not seem drunk; he seemed pretty normal and calm. Given that Mr. McCaw consumed only one litre of wine over a period of several hours I would not have expected him to be very intoxicated by this point particularly given what he admitted he drank in this time frame.

What happened in the apartment after 11 pm

Mr. McCaw’s version of events

[77] On Mr. McCaw’s version of events he was the only one in the apartment when Ms. K.B. and Mr. S.L. returned, which as I have said I am prepared to accept. He testified that Mr. S.L. had beers in the fridge; he thought he had three or four out of a six-pack, and that before Mr. M.H. arrived, the three of them sat down and each drank a beer. He did not remember what kind of beer, but from the photos introduced into evidence, he thought it was Stella. He didn’t notice if Mr. S.L. and Ms. K.B. finished their beers.

[78] According to Mr. McCaw, after they had a beer together, Ms. K.B. and Mr. S.L. went upstairs, presumably to Mr. S.L.’s bedroom. He didn’t know what they went up for, but admitted that they could have been going upstairs just to go to sleep for the night. I note that there was no evidence as to whether or not they were expecting Mr. M.H. Mr. McCaw testified that he stayed downstairs and since the main floor was fairly cluttered, he was casually tidying up the clutter when he came across a white plastic bag that was sitting right beside the dining room table on the floor; what is in fact a glass counter that separates the kitchen from the living room. He looked inside and he saw an article of clothing of some sort and a clear plastic water bottle that he assumed was just for water although it had the label removed and so he thought it was a used water bottle. Mr. McCaw specifically remembered it was full, and he thought it was filled with water.

[79] Mr. McCaw assumed it was Mr. S.L.’s bag because it wasn’t his. He testified that he called out up to Mr. S.L. and said that he had a bag of his things, and he believes Mr. S.L. met him half-way down the stairs and he handed it over to him. Mr. McCaw said things like this he would have put in his room, and so he was handing it over to Mr. S.L. to put in Mr. S.L.’s room. Mr. McCaw testified that at the time, Mr. S.L. also thought it was just a bottle of water and that Mr. S.L. told him that the bag didn’t belong to him and he didn’t know anything about the bag. He also testified however that Mr. S.L. said that the bag belonged to Mr. C.A.

[80] Mr. McCaw testified that it was maybe ten or 15 minutes “earlier” [I assume he meant later] that Mr. S.L. came down and told him that it was a bottle of G that his friend C.A. had left. Mr. McCaw admitted that it was quite possible that neither Ms. K.B. nor Mr. S.L. knew that bottle of GHB was in the apartment. He couldn’t say how Mr. S.L. determined that the bottle contained GHB. Mr. McCaw testified: “I believe at that point he asked me if I wanted to do some with him and Kayla.” When Mr. Frost asked him why he said “believe” and whether or not he had a recollection of this, Mr. McCaw said he did have a recollection and that he didn’t know if it was ten minutes later or if it was right at the moment.

[81] Mr. McCaw testified that he said yes, then went upstairs and saw Mr. S.L. standing in the doorway of the bathroom with Ms. K.B. standing to his right in the hallway. According to Mr. McCaw, Mr. S.L. took a small sip out of the bottle and handed it to Mr. McCaw. He took a small sip out of the bottle and Mr. S.L. handed it to Ms. K.B. According to Mr. McCaw, as she was taking her little sip, Mr. S.L. tipped the bottle up and she ended getting more than she was intending. He testified that at this point, Ms. K.B. called Mr. S.L. an “asshole”.

[82] Mr. McCaw recalled that the bottle had a cap on it at the beginning when it was in the bag, and so the cap must have been somewhere. He didn’t know what happened to the cap. Mr. McCaw testified that he took the GHB straight from the bottle and so he did not know if he took a full cap or less. He strongly believes that he would have been quite cautious and would have erred on the side of caution at this point, because he had been consuming alcohol and because of his experience ending up in hospital in 2014. Mr. McCaw also testified however, that he did not have a memory of thinking that he needed to be careful at that time but he assumes that he was. He admitted that he knew that alcohol and GHB was a thing to watch out for.

[83] As for why he accepted the GHB, Mr. McCaw testified that he had finished the wine and a beer and he didn’t have any more alcohol of his own in the house, and so it may have been opportunistic that he was offered some more intoxicant and that he accepted it.

[84] In cross-examination Mr. McCaw admitted that in the photographs entered into evidence that you can see items on virtually every surface of the apartment and that it was a cluttered, messy apartment. Mr. McCaw then said that he could see where Ms. Garcia was going, and testified that the apartment looked the way it did because they had been partying, but that he liked to keep it tidy and somewhat presentable. He just didn’t want Mr. S.L.’s clutter and random things lying around. Mr. McCaw testified he didn’t believe he got very far in the process of tidying up when he came across the plastic bag. He didn’t give Mr. S.L. a whole bunch of things that he had cleaned up.

[85] Mr. McCaw believes that after they had some GHB that he then went downstairs and that Mr. S.L. and Ms. K.B. stayed upstairs. He believes the bottle of GHB stayed upstairs with them but he didn’t really remember. Mr. McCaw testified that Mr. M.H. then arrived and he helped Mr. M.H. bring the mattress up the two sets of the back stairs and they put it in Mr. S.L.’s bedroom. At the time, Mr. McCaw had been doing a lot of office moves, and so moving furniture was a comfortable exercise for him. However he testified that the consumption of the GHB had affected his level of intoxication although he had no specific memory of how he was feeling at this time or of assessing his level of intoxication save that he was intoxicated at the time he helped move the mattress.

[86] Mr. McCaw testified that all four of them then went downstairs to the living room and they were listening to music and hanging out. He said that once they were downstairs, the four of them took some more GHB, although Mr. McCaw admitted that he did not remember specifically watching each person take it. He didn’t know who brought the bottle of GHB downstairs; he had no memory of bringing it down. He didn’t believe he was the first to handle the bottle because, “I wouldn’t presume to go first when something doesn’t belong to me.” Mr. McCaw could not remember if the bottle cap was now present and if he drank the GHB from the cap or the bottle.

[87] According to Mr. McCaw, although he did not know what Mr. M.H. had intended, once he arrived and they took more GHB, it turned into more of a social function. Mr. McCaw testified that he has a memory of the four of them standing around the glass counter between the kitchen area and the living room and that the bottle of GHB was sitting on the countertop. He believes that they all took some GHB because they would pick up the bottle one by one and take a dose. Mr. McCaw admitted however that he did not have a clear memory of Ms. K.B. picking up the bottle of GHB and taking a sip. He testified that he did have a memory of Mr. S.L. picking up the bottle and taking a sip although he didn’t know what time that was and he admitted that after Mr. M.H. arrived, he did not have a clear memory of Mr. S.L. taking GHB. Similarly, he admitted that he did not have a clear recollection of Mr. M.H. taking GHB when he first arrived but he said that his arrival was the impetus for them doing it again.

[88] Mr. McCaw testified that he was under the impression that Mr. S.L. had taken responsibility for the consumption of the GHB. He believed a full bottle of GHB would be worth several hundred dollars. He didn’t think about the fact that he might have to buy what he took, until Ms. Garcia pointed out that he was taking Mr. C.A.’s drugs without paying for them. Mr. McCaw said he was just accepting the GHB from Mr. S.L. and he really didn’t think about the cost. He then said that he had a vague recollection that there may have been some discussion about cost. Mr. McCaw admitted that he wouldn’t have been presumptuous and taken the bottle first, or taken the GHB without Mr. S.L. there. He did it with them to be social. He wanted to participate in the fun that night.

[89] Although Mr. McCaw had testified that he had a specific memory of the bottle of GHB being full when he first found it, in cross-examination he said that although he would call it full, it could have been slightly higher or lower than the level of water in an unopened and sealed water bottle. When Mr. Garcia gave him an empty water bottle, he refused to use the Sharpie to mark the level of the GHB, as he said he could not do that with any degree of accuracy. He testified that he knows for sure that the bottle was at least more than three-quarters full.

[90] Mr. Frost did not put a complete summary of Mr. McCaw’s anticipated evidence to any of the Crown witnesses; he only asked them some general questions. Ms. K.B. testified that she did not use any drugs including GHB on the night of July 11/12, 2015. When Mr. Frost suggested to her that she did GHB that night, she stated, “I do not remember doing that.” She did not remember any substances being there that night. Ms. K.B. testified that when they came back to the apartment, before they started drinking, she may have gone upstairs to Mr. S.L.’s room on the second floor but she did not recall Mr. McCaw approaching her and Mr. S.L. with a water bottle and asking, “What is this?” She did not remember determining that GHB was in the water bottle. When asked if it was possible she took a little bit and then Mr. S.L. tipped the bottle into her mouth and she called him an “asshole”, she testified she didn’t remember any of this. When asked if she remembered that the three of them took capfuls of GHB, Ms. K.B. answered, “That’s not good. No, I don’t remember that.” When asked what she meant, she said that if you’re drinking and you take GHB, it’s “not going to end well” and that “[p]retty much you’re done for the night, that’s what I mean. You should never – that’s what the date-rape drug is if you mix it with alcohol. Then, that’s what happened.” It means it’s “time to go to bed, like, you’re passed out. Pretty much.”

[91] Mr. S.L. did not think that Ms. K.B. took any GHB or ecstasy at some point on the night of July 11/12, but said it was possible because at that time, they were all going through a rather experimental phase and doing a lot of drugs on the weekends. When asked if it was possible that he had done GHB at that time, Mr. S.L. said that he remembered drinking all day and his memory is hazy and that he was forgetful of points that evening. Mr. S.L. testified that he didn’t take GHB knowingly, and he didn’t recall doing it. He testified he was just drinking at the pool party and at home and that he did not remember doing any drugs that night with Ms. K.B. or Mr. McCaw that night either. When it was put to him that he did one with Ms. K.B. and Mr. McCaw before they went to the bar, Mr. S.L. said he did not remember doing that. As far as Mr. S.L. was aware, he did not think that Mr. M.H. did G the night of July 11/12.

[92] Mr. M.H. testified that he did not see anyone consume drugs on the night of July 11/12, 2015 in the apartment and that he did not recall seeing Mr. S.L. or Ms. K.B. consume GHB that night. When Mr. Frost asked him if he saw them taking sips of liquid from any caps from the top of small bottles he said he could not recall that and added: “Why would they do that?”. To that Mr. Frost said: “To consume GHB” and Mr. M.H. responded that he had “no idea”. When asked if he consumed any GHB he said that he had never seen GHB in his life.

[93] Mr. McCaw admitted that the bag with the bottle of GHB is not in any of the photographs taken by D.C. Patching and he said this is because he gave it to Mr. S.L. There is no dispute that the photographs of the inside of the apartment do not show a water bottle with a missing label even though they show all of the living room and Mr. McCaw’s bedroom. Mr. Frost suggested in his closing submissions that Mr. S.L. picked it up when he and Ms. K.B. left the apartment but this suggestion was never put to Mr. S.L.

The version of events testified to by Mr. M.H., Ms. K.B. and Mr. S.L.

[94] According to Mr. M.H., he wasn’t planning on hanging out because he was driving and so he couldn’t get drunk. There was no suggestion that Mr. M.H. had been drinking before he arrived. He testified that he brought three or four tall boy beers to the apartment; Canadians and Labatt or something like that. He did not remember if he put them in the fridge when he arrived. He thought that they drank them after they moved the mattress up to Mr. S.L.’s room. Mr. M.H. gave one beer to Mr. S.L., one to Ms. K.B., and kept one or two for himself. Mr. M.H. thought that they drank one and talked a little bit, and that he then drank the second one and “that was it”. He did not see Mr. S.L. consume any other types of beer and he thought Ms. K.B. drank one beer and that she passed out early.

[95] Ms. K.B. admitted that her memory was a bit blurry as to exactly what happened when she got back to the apartment. She testified that once they were back, she had a few sips of a beer; she couldn’t say what kind, and that she did not even finish it because she was still very drunk. She said that she was just drinking and socializing but she did not consume any other alcohol and that she did not do any drugs, including marijuana or GHB that night. According to Ms. K.B., Mr. M.H. and Mr. S.L. did not consume drugs either, to her knowledge.

[96] According to Mr. S.L., they had a few more beers once Mr. M.H. arrived. He believed that he got a Kronenbourg from the fridge or they were “leftovers from beforehand.” Mr. S.L. testified that he had two tall boys of beer and he believed Ms. K.B. had the same but he was not sure because he was not watching what she drank. He believed Mr. M.H. was drinking beer as well.

[97] The witnesses agree that Mr. McCaw was with them once Ms. K.B. and Mr. S.L. were home. Mr. M.H. confirmed that Mr. McCaw was hanging out with them for a while and that perhaps he went up to his room. He said that they were watching something; a movie or a series, on Mr. McCaw’s or Mr. S.L.’s computer for a brief period of time. Mr. Frost took him to his police statement and after he refreshed his memory, Mr. M.H. testified that he couldn’t remember the details but that after they moved the mattress they watched something on the computer that was about a half an hour to 45 minutes long. I note Mr. McCaw did not give evidence about this.

[98] When asked if Mr. McCaw was joining in with the beers, Mr. M.H. said that he was not 100% sure as he wasn’t paying a lot of attention to him. The beers he brought were for himself and Ms. K.B. and Mr. S.L. as he was closer to them; in other words he did not give Mr. McCaw any of the beers he brought. When asked if there were any drugs being consumed by either Mr. S.L. or Ms. K.B., Mr. M.H. said no. When it was made clear that it included marijuana, he said not that he knew of. According to Mr. M.H., he did not take any drugs at the time and he denied the suggestion that he consumed GHB with Mr. McCaw.

[99] After the two additional beers, Mr. S.L. admitted that he was “definitely drunk” and he said that Ms. K.B. was “very, very, very, very drunk”. When asked by Mr. Frost how much he’d seen Ms. K.B. drink at that point, Mr. S.L. said: “not much, a few beers” but he could not say the number. It is not clear to what point Mr. Frost was referring, as he then asked how intoxicated Ms. K.B. was when she left the pool party. To that Mr. S.L. said that they were both quite drunk. He said that they were both noticeably intoxicated, feeling tipsy and stumbling a bit. However, he would not describe Ms. K.B. as very intoxicated, but not slightly intoxicated either. Mr. Frost put to Mr. S.L. that at the preliminary inquiry, he said that Ms. K.B. was “a bit intoxicated”, and now he was saying that she was “rather intoxicated”. To this, Mr. S.L. said that he may have said the wrong words, but they were intoxicated – just not heavily intoxicated. I did not see this as a significant inconsistency. He couldn’t remember Mr. McCaw’s state of intoxication.

[100] Mr. S.L. did not remember what Mr. McCaw drank, but believed he probably drank one or two beers as well. He was not asked if he gave Mr. McCaw some of his beer. Mr. McCaw may have smoked some marijuana but Mr. S.L. was not aware that he took any drugs. Ms. K.B. testified she may have seen Mr. McCaw smoking weed, but she did not remember if he drank. She wasn’t paying attention to the amount of marijuana that he was smoking.

The first trip out of the apartment to smoke

[101] Ms. K.B. testified that after they had beer, as I have already described, all four of them left the apartment to have a regular cigarette in the parking lot behind the building. She thought it was possible that she brought the beer with her when she went outside, but she didn’t know. She just remembered sitting outside smoking and talking with everyone. Mr. S.L. also testified that it was likely the four of them went downstairs to smoke a cigarette or two.

[102] Ms. K.B. testified that at this time, while they were in the parking lot, she started to go “out of it” and lose consciousness and she wasn’t able to continue conversations with everyone. The others noticed. Ms. K.B. had no idea how long she was “carousing” before she passed out; she thought it was between half an hour and 45 minutes.

[103] Ms. K.B. testified that she then only vaguely remembered being carried up the stairs by Mr. M.H. although she didn’t remember going back into the apartment. She testified that Mr. M.H. was the only person who would have been able to carry her up the stairs but she didn’t know how he carried her. She believed she was brought upstairs around midnight.

[104] There is no dispute that at the time Ms. K.B. was wearing a bikini, denim shorts, a tank top and a vest over top. The top of her bikini was just tied at the back. Her denim shorts were entered into evidence. They have a front zipper and a button for closure. I opened the button on the shorts and would say that because of the relative stiffness of the denim that it take a bit of effort to do so.

[105] Mr. S.L. did not testify about going out for a smoke. He remembered Ms. K.B. being on the couch, passed out or asleep. By that he meant that she was too intoxicated and losing consciousness as a result. He could not remember where she passed out or how she got upstairs to the couch; although he assumed that she was brought to the couch. By “passed out” he testified that he meant that she was too intoxicated and losing consciousness as a result of the level of the intoxication and that she was staggering over, stumbling, and then just lying down and going to bed.

[106] Mr. M.H. also did not testify about the four of them going to the parking lot to smoke or about carrying Ms. K.B. up the stairs from the parking lot. When asked if he remembered anything else between the time he arrived and they were drinking in the apartment and the time they went to the bar, Mr. M.H. said that there wasn’t anything to remember. He was not prompted any more specifically. According to Mr. M.H., Ms. K.B. was in the living room lying on the couch when she passed out at around 11:30 – 12:00 p.m. He said that she just sat on it and, his answer was cut off but I presume he was going to say “passed out on it”. He observed that Ms. K.B. was “pretty drunk”. On a scale of 1 to 10, 10 being “out cold”, she was “out cold”.

[107] As I will come to, Mr. McCaw remembers all four of them going to the parking lot for a smoke and Ms. K.B. needing to be carried back up to the apartment but he puts this after they went to the bar that was on the ground level below the apartment. According to Mr. McCaw, they were hanging out in the living room a little more, talking and perhaps listening to music. He had a recollection at some point during the night of Mr. M.H. talking about body building and problems with his nerves.

[108] According to Mr. McCaw, he and either Mr. S.L. and/or Mr. M.H. did more of the GHB. He didn’t remember seeing Ms. K.B. do it. He believed no one would have thought it was a good idea for her to do so at this point. Mr. McCaw said he was doing his best to estimate when and how much he consumed, but that it was very difficult for him to say with any certainty who did what when.

The first visit to the bar

[109] According to Mr. McCaw, they all went to the bar, including Ms. K.B., at around 11:30 p.m., but it was again, his “best guess”. He testified that they each ordered a tall boy of beer. When they got to the bar, Mr. McCaw testified that Ms. K.B. was not acting extremely intoxicated or displaying signs of intoxication. However, according to Mr. McCaw, towards the end of that tall can, Ms. K.B. was drunk and high. She was being excessively loud and maybe gesturing loudly and so they decided to go back upstairs. He said it was hard to estimate but that maybe they were at the bar for 45 minutes or an hour and that he believed they were at the bar the first time until about 12:30 a.m.

[110] Mr. McCaw couldn’t remember finishing his Pabst “tall boy”, because of the issues with Ms. K.B., but he thought it was between three-quarters or all finished. He did not notice how much the others were drinking because their beer was in cans and he couldn’t see inside. He also wasn’t paying attention.

[111] Ms. K.B. denied going to the bar and when in cross-examination it was suggested to her that she did, she testified that she did not remember doing that. Mr. S.L. and Mr. M.H. agreed that after Ms. K.B. passed out and was put on the coach, that they and Mr. McCaw went to the bar to get a drink. Mr. S.L. testified that his level of his intoxication was “high” and that he did not remember if Ms. K.B. was ever with him inside the bar that night. When asked if it was possible that Ms. K.B. was at the bar as well, after having a cigarette in the parking lot, Mr. S.L. testified that this was not possible. In cross-examination Mr. Frost took him to his preliminary inquiry evidence where he said that he, Ms. K.B. and Mr. M.H. went to the bar. Mr. S.L. admitted that his memory was fresher at the time and so this was a real possibility.

[112] In cross-examination Mr. Frost put to Ms. K.B. that Mr. S.L. had said that she, Mr. S.L. and Mr. M.H. had gone to the bar and he asked if she accepted that as a possibility. At this point she was the first witness. No objection was made to the question. In any event, Ms. K.B. maintained her position and testified that she did not even remember going down to the bar.

[113] Mr. M.H. denied the possibility of Ms. K.B. going to the bar with them, and the possibility that they went to the bar twice. She was still on the couch downstairs when they returned from the bar and her condition was the same and she was still in the same clothes.

[114] At the bar, Mr. M.H. testified that they played a game or two of foosball. Because Mr. S.L. was very intoxicated he couldn’t play that much. Mr. M.H. did not observe Mr. McCaw having any trouble playing the game. According to Mr. M.H., because Mr. S.L. was intoxicated, the bartender didn’t serve Mr. S.L. any beer and so they did not spend a lot of time at the bar. They exited and hung out in front of the bar itself. Mr. S.L. was sitting on the sidewalk and got a bit nauseous and threw up a little. Someone from inside the bar didn’t like what was happening and asked them to remove Mr. S.L. Mr. M.H. testified that he and Mr. McCaw then helped Mr. S.L. upstairs up to his bedroom. Mr. M.H. testified that as Mr. S.L.’s new bed was not set up, they put him on the air mattress that he had been using at the time.

[115] Mr. M.H. testified that when they left the bar, Mr. McCaw was as sober as he was and that Mr. McCaw was not even tipsy. He estimated that Mr. McCaw was a 1 or 2 out of 10 maximum in terms of level of intoxication because they weren’t drinking that much and he didn’t see him consume alcohol.

Time back in the apartment

[116] According to Mr. McCaw, the first time they were back upstairs after the bar, it was perhaps 12:30 - 1:00 a.m., but he was not sure. He based this on the fact they went to the bar a second time and left just before last call, which would have been before 2:00 a.m.

[117] According to Mr. McCaw, after the first visit to the bar and once they were now back in the living room, they did more G, although he did not believe that all four of them did. He took roughly a capful. He does not believe Ms. K.B. took anymore because she was intoxicated. Mr. McCaw thought that while they were hanging out, he likely also had some marijuana.

[118] Mr. McCaw testified that all four of them decided to go downstairs to the parking lot to have a cigarette. Everyone was having a cigarette, but Ms. K.B. was acting strangely and erratically – she was gesturing grandly and stumbling around, and they were concerned so they told her to sit down on the curb. At some point not too long after that, she just “kind of like, fell over” onto either Mr. S.L. or Mr. M.H.

[119] Mr. McCaw admitted that at this point, there was no mystery that Ms. K.B. was intoxicated. She was so intoxicated that Mr. M.H. being the biggest of them, had to pick her up and he had to carry her upstairs like a bride, in that he literally scooped her up with one arm under her upper body and one arm behind the crook behind her knees. Mr. McCaw agreed that she was “out” at this point but then testified he heard her say something as Mr. M.H. was carrying her up the stairs. He didn’t remember what it was and said that it was not unintelligible - she was not talking in full sentences; he just couldn’t remember what it was.

[120] All four of them went upstairs. Mr. M.H. took Ms. K.B. into the living room and laid her down on the couch. Mr. McCaw couldn’t remember what position she was in and testified that once she was on the couch, she “fell asleep or something” soon after. She was fully clothed. When it was suggested to him by Ms. Garcia that she had passed out, he said, “Sure. I don’t know.” Mr. McCaw agreed that he, Mr. M.H. and Mr. S.L. were still around and speaking to one another at this point and socializing and that Ms. K.B. did not wake up or move. However, he testified that no one was talking to her, or trying to wake her up, that he remembers and so she wasn’t prompted to respond in any way. He has no memory of Ms. K.B. saying anything to him at this time.

[121] Mr. McCaw disagreed with the suggestion that Ms. K.B. had consumed so much alcohol and drugs that it affected her to the point where she wasn’t awake anymore and had passed out. He didn’t dispute that she was asleep and that it was at least in part due to her having taken drugs and alcohol but he said it was also 1:00 o’clock in the morning and she would have been naturally tired. Mr. McCaw testified that he did not assume that Ms. K.B. had taken a lot of alcohol and drugs at the time. He didn’t know how much she had consumed and he didn’t have a clear memory of that. All he saw Ms. K.B. consume was part of a tall can of beer, one beer and G – for sure, once. He believes she took G a second time, but to him that was not “so much drugs”. He knew Ms. K.B. was intoxicated but denied that he was expressly thinking that she was drunk. In this long exchange where Ms. Garcia’s trying to get Mr. McCaw to admit that Ms. K.B. was drunk as a result of alcohol and drugs, he suggested that they didn’t try to get her to walk up to the apartment on her own and that Mr. M.H. just picked her up although he did admit that it was probably necessary at the time. He agreed that she was passed out on the couch according to the definition that Ms. Garcia had used – namely, not responding to what was around her.

Was there a second visit to the bar?

[122] According to Mr. McCaw, maybe a half an hour later, Mr. S.L. and Mr. M.H. decided to go back down to the bar a second time. Mr. McCaw testified that he did not take any more GHB before going back to the bar that he could remember.

[123] According to Mr. McCaw, at the bar they ordered another round of “tall boys”. They had just finished those and ordered another round. He had barely begun to drink his when Mr. S.L. started to display signs of intoxication. Mr. McCaw said that he had forgotten this originally but that he remembered Mr. S.L. sitting out front “puking,” although he said this was still “kind of hazy”. Mr. McCaw admitted that he did not recall this independently until Mr. M.H. testified to it. He testified that he was able to form some memories of what occurred that night when other people told him and he twigged to it. Mr. McCaw said that he thought this was fairly standard in the way memory works and he testified that his memory often worked that way.

[124] At this point in cross-examination, Mr. McCaw said that he had to revise his times. He estimated that he consumed the rest of that second beer around 2 a.m. The next alcohol after that was what was left in Mr. M.H.’s can of beer; a third or a half of a beer, when Mr. M.H. left at 4:15 or 4:20 a.m.

[125] After Mr. S.L. threw up, Mr. McCaw testified that they put the unfinished beers in their pocket as it was close to closing time and they knew they couldn’t come back and get more later. Mr. S.L. couldn’t walk properly himself and so they supported him, like soldiers would support a wounded soldier, with their arms around his shoulders and helped him upstairs to his bedroom. Mr. McCaw testified that Mr. S.L. was able to support some or most of his weight but he wasn’t able to keep his balance so they helped him up to his room. According to Mr. McCaw they weren’t carrying him like a dead weight and so he knows that Mr. S.L. was “somewhat functional” going up the stairs. They put him on his bed and left him. He and Mr. M.H. went back downstairs to the living room.

[126] Mr. S.L. did not remember going to the bar twice. When asked if it was possible, he said that he did not think that they did and that it was not how he remembered the sequence of events. He was taken to his preliminary inquiry evidence and he testified that if he said it then, then he was being honest – i.e., that it “could be true”. When taken to the transcript, Mr. S.L. said it did not refresh his memory. However, he did acknowledge his memory was fresher then than it was at trial, and that it was a real possibility that Ms. K.B. walked to the bar with him. He was then taken to a part where he said that “we” had another drink, which seems to have included Ms. K.B.. This did not jog his memory that she did consume alcohol at the bar.

[127] Mr. M.H. denied the possibility of Ms. K.B. going to the bar with them, and the possibility that they went to the bar twice.

[128] Mr. S.L.’s last memory of the night was sitting in front of the bar on the street. He didn’t remember how he got back to his apartment or to his room that night. He did not remember seeing Ms. K.B. again when he went upstairs after the bar. Mr. S.L. testified that he didn’t remember anything after visiting the bar. At no point during the night before Ms. K.B. came into his room in the early morning did Mr. S.L. wake up. He did not recall hearing anything while he was in his room that night.

What happened after Mr. S.L. was in his bedroom?

[129] Mr. McCaw testified that once he and Mr. M.H. put Mr. S.L. on his mattress, they went back downstairs. When asked to confirm that Ms. K.B. was still not conscious, Mr. McCaw said he wasn’t really paying attention to her. He then admitted that he didn’t notice any signs of her having been awake, but he said he wasn’t monitoring her so he didn’t know if she opened her eyes or did anything and then went back to sleep. She did not speak as far as he recalls but he did remember her shifting. They were, however, not purposeful movements. When Ms. Garcia restated this, however, as being non-purposeful shifting movements when Ms. K.B. was unconscious, Mr. McCaw said he didn’t know. He was clearly trying to avoid admitting that she was essentially passed out on the couch.

[130] However Mr. McCaw testified that he and Mr. M.H. were hanging out downstairs and speaking at a normal volume right in front of Ms. K.B. in the living room and possibly listening to music although he did not believe they were playing music. They were not worried that anyone was going to wake up because they [Ms. K.B. and Mr. S.L.] were “both passed out”. To that point, there had been no response from Ms. K.B. to any of the movement or conversation around her.

[131] Mr. McCaw estimated that he and Mr. M.H. were alone in the apartment from 2 a.m. after Mr. S.L. went to bed until 4 a.m. Mr. McCaw admitted that this was the first time he and Mr. M.H. spent any considerable amount of time together alone. He did not remember any topic of conversation. Mr. McCaw said that they had the beers that they each brought from the bar and he testified that he took one dose of G at around 2 a.m. He couldn’t recall if it was from the cap or the bottle. He believes he would have smoked more marijuana based on his habits. He believes Mr. M.H. also took some GHB.

[132] According to Mr. McCaw, around 2:45 to 3 a.m., he did another dose of GHB; but at that point, it was becoming less clear to him. He assumed it would have been one more bottle cap full, but he didn’t really know. Mr. McCaw admitted that at this point his memory was certainly not great. He testified that his “best guess” was that while Mr. M.H. was still at the apartment that, he, Mr. McCaw, took one or two more doses of G but at what point in all of that time period he said that he had no clue. He said that at this point he couldn’t remember what state he was feeling he was in, but he had less memory from that point and the details were fewer and farther between. Mr. McCaw testified that he did not know that he thought about anything in terms of it not being his GHB - he didn’t recall considering this.

[133] Mr. McCaw testified that he believes it was around this point that Mr. M.H. told him that he had to drive because he said he had to go somewhere and so he was going to stop drinking and taking G and he then stopped. According to Mr. McCaw, Mr. M.H. did not drink all of the beer that he brought back from the bar. Mr. McCaw said it stuck in his memory that Mr. M.H. told him that he had to stop because he was driving; he testified initially in his evidence in chief that for some reason it stuck in his memory that an hour of not drinking or taking drugs was enough time to be good to drive. In cross-examination Ms. Garcia got this wrong and put to Mr. McCaw that he had said the day before that he did not think an hour was enough time for Mr. M.H. to sober up. He didn’t remember saying anything about this to Mr. M.H. even though he admitted that Mr. M.H. would not have been in a good condition to drive.

[134] Mr. McCaw believes that he, Mr. McCaw, did one more dose of GHB after Mr. M.H. said he was going to stop. He said it was a “vague kind of hazy memory. It is difficult to say whether it even happened for sure”. At this point, when Ms. Garcia suggested he didn’t remember the time, Mr. McCaw added it was likely that he didn’t look at his watch and so it was not a case of remembering; it was just “not knowing”. In this time, he had no memory of Ms. K.B. stirring.

[135] When Mr. M.H. said he was leaving according to Mr. McCaw the two of them went outside for a smoke. Mr. M.H. then got in his van and drove away. Mr. McCaw testified that he has a distinct recollection of looking at his watch and that this happened at 4 a.m. He did not know why he looked at his watch and said that it was not something that necessarily stood out to him at the time, but after being arrested and realizing the gravity of the situation, it was one of the things he remembered and held onto.

[136] After Mr. M.H. drove away, Mr. McCaw walked up the stairs into the apartment. He decided he was going to “knock myself up by taking a larger dose [of GHB]”. He was lonely and “pretty f***ed up”. Mr. McCaw didn’t want to be awake anymore so he took a swig from the bottle of G which was on the table [i.e. the glass counter top]; the same place that it had been the whole night. Mr. McCaw said that his best guess was that he took maybe two or three times as much as he had done previously. Mr. McCaw testified that he had heard from other people that GHB was involved in sleep somehow, and that it could be used to help you sleep.

[137] According to Mr. McCaw, after he took the final swig of GHB he walked over to the computer desk and sat down. He was still conscious and had not passed out. He believes his intention was to sit down, smoke some weed and put on Netflix – but he didn’t remember doing that although he also testified that he might have.

[138] Mr. McCaw testified that he finished Mr. M.H.’s beer; the third or so of the beer that Mr. M.H. had left although he also testified that he did not remember finishing that beer.

[139] Mr. M.H.’s version of events is very different from Mr. McCaw’s. According to Mr. M.H., he and Mr. McCaw talked about a series on Netflix called Friends that they had just added to Netflix and they also talked about movies and other series. Mr. M.H. was asked whether after he and Mr. McCaw were alone they discussed weightlifting, nerve damage and health risks. Mr. M.H. admitted that he liked to talk about weightlifting with anyone as it is his passion but he couldn’t remember if they talked about that or for that matter what they talked about. At this point, Mr. Frost stated that he wasn’t sure where the hostility was coming from. I can’t say that I noticed any at this point but when Mr. Frost started to ask Mr. M.H. whether weightlifting was part of his lifestyle, Mr. M.H. said: “where is this going?” and that it was “too personal”. There had already been objections by Ms. Garcia on the basis that questions were not relevant, which I overruled and directed that Mr. M.H. answer so that may have been a factor. In any event Mr. M.H. testified that he had never heard anyone talk about GHB at the gym, and did not know that GHB is something that weightlifters use. I note that Mr. McCaw did not testify that they had such a discussion and the expert witnesses were not asked if there is any veracity to this suggestion put to Mr. M.H.

[140] While he was chatting with Mr. McCaw, Mr. M.H. testified that he did not see Mr. McCaw consume anything at all. By the time he left, Mr. M.H. described Mr. McCaw’s level of intoxication as a one or two on a scale of ten. However he admitted that he wasn’t really monitoring Mr. McCaw’s drinking patterns that evening, or what drugs he was or wasn’t consuming and that he wasn’t monitoring whether or not Mr. McCaw was consuming GHB.

[141] Mr. M.H. rejected the suggestion that he consumed GHB with Mr. McCaw. When it was suggested to him that after Mr. S.L. passed out he spent a few hours with Mr. McCaw drinking and doing GHB, he denied drinking because he said he had to drive from where Mr. S.L. lived to Ajax where he lived. He did not want to be intoxicated while driving because he did not want to die or kill someone. When Mr. Frost suggested to him that he did try to sober himself up, but it wasn’t from just alcohol – it was also from GHB consumption, Mr. M.H. testified that he had never done GHB before.

[142] Mr. M.H. testified that he and Mr. McCaw went downstairs to the parking lot to have a cigarette. He said that before he left they went back upstairs and Mr. McCaw started watching Friends. Mr. M.H. tried to wake up Mr. S.L. because he wanted to tell him that he was leaving but Mr. S.L. was not responding. Mr. M.H. testified that he tried to wake up Ms. K.B. as well to tell her he was leaving but there was no response at all. He said that in order to try to wake Ms. K.B., he nudged her on her shoulder but it seemed useless, so he didn’t try to do more. She was in the same condition as before. He was “kind of worried” about them, but they were “knocked out hard”. In re-examination, Mr. M.H. said that he thought that Mr. S.L. and Ms. K.B. were drunk and passed out, and that they would just wake up after sobering up. He was not worried about their safety or their health. Mr. M.H. testified that he then told Mr. McCaw that he was going to be leaving. He left around 1:30 a.m. Mr. McCaw was in the living room.

[143] Mr. McCaw disagreed with the evidence of Mr. M.H. that he had only had a little bit of alcohol to drink and did not have any drugs. He also disagreed with Mr. M.H.’s evidence that in terms of level of sobriety, the two of them were the same: at a one or two out of ten. According to Mr. McCaw, when Mr. M.H. left he; Mr. McCaw, was “fed up”. When Ms. Garcia suggested to Mr. McCaw that it would have been apparent to any observer that he was intoxicated because he said he was “fed up”, he answered he didn’t know as he couldn’t see himself through someone else’s eyes. When he was challenged on this answer, he said that all he could reliably tell Ms. Garcia was how he felt. He admitted initially that he may have looked normal and testified that he didn’t believe that he was stumbling around. A few minutes later he testified that he did not use the word normal but he admitted he likely would not have seemed completely sober, but he couldn’t say what someone else might have thought.

The alleged sexual assault

[144] There is no doubt that Mr. McCaw engaged in sexual intercourse with Ms. K.B. He admitted this and the fact that his DNA was found inside her vagina and on her exterior genitalia. Ms. K.B.’s last memory was that she was clothed and that her shorts were buttoned up and all of the witnesses, including Mr. McCaw, confirm that she was left on the couch in the living room, fully dressed. She testified that after her vague memory of Mr. M.H. carrying her up the stairs, her next memory was waking up, naked and on her back on the couch to someone touching her and kissing her body everywhere; down her neck, her breasts, and on her vagina. She felt fingers being inserted into her, and then “he” started having intercourse with her – his penis was in her vagina. She was not moving and her eyes were not open at this point.

[145] Ms. K.B. testified that at the time she was really out of it and didn’t understand what was going on. She thought it was her boyfriend, Mr. S.L., and that is why she permitted it to continue but she thought it was “a lot” that he would be doing this, especially since “I was on my period”. She was just lying there, not moving and she didn’t say anything. When she heard him say, “I am going to come”, she opened her eyes and saw that it was Mr. McCaw on top of her. She didn’t understand and told him to stop. Ms. K.B. testified that until she opened her eyes, she was really out of it and didn’t understand what was happening or why it was happening.

[146] Ms. K.B. told police and testified at the preliminary inquiry that Mr. McCaw said that he was going to come inside her. Ms. K.B. testified at trial that she was sure Mr. McCaw just said, “I’m going to come”. She could not remember him saying that he was going to come “inside her” but she was not sure if he also said those words or not. In my view whether or not Mr. McCaw said these additional words is not important and Ms. K.B.’s uncertainty about this and the inconsistency in her evidence on this point did not concern me.

[147] Ms. K.B. testified that the only thing she ever said to Mr. McCaw was “stop”; she was sure of that. Mr. McCaw had already come by then, and so he stopped. She wasn’t sure if he came inside her or not. Ms. K.B. testified that when she said “stop”, Mr. McCaw’s penis was no longer inside her vagina and she got up and he sat beside her.

[148] Ms. K.B. was taken to her police statement by Mr. Frost where she told police that Mr. McCaw said “I’m going to come inside you” and that “then he, when he was done, he got up and then I didn’t say anything. I didn’t know what to say” [emphasis added]. Ms. K.B. testified that she did state “stop”, even though she did not say it there. When Mr. Frost suggested that there she was saying the exact opposite and that she did not say anything, Ms. Garcia objected to the manner in which Mr. Frost was characterizing the police statement.

[149] Ms. K.B. was excused and when I permitted Mr. Frost to return to this passage, it appears from the transcript that I now have that he misread it back to Ms. K.B. as he read in part “he got up and I didn’t say anything.” In my view the word “then” that he missed is important as clearly when Ms. K.B. gave this information to police she was talking about a later point after Mr. McCaw stopped and she got up, although it is true that she did not include the fact that she told him to stop. Although I don’t suggest it was deliberate I did not catch this at the time as I did not have a copy of the transcript. Ms. K.B. however may have picked up on it because she said that there was a “hole or a gap in between” but that she did tell him to stop. When Mr. Frost asked her whether her memory had improved over time or she just missed it she said she just missed it because she was very nervous and it took a lot to get her into the court room that day. When asked if it was possible that she didn’t say “stop”, Ms. K.B. said “no” but that she was really out of it and may not have said it “that loud” [emphasis added] but she did remember and she denied adding “stop” to make the point. Ms. K.B. testified that she was so out of it that she didn’t know who was on top of her and having non-consensual sex with her.

[150] The next day Mr. Frost took Ms. K.B. back to this evidence and he put it to her that she had said the previous day that she didn’t say stop “out loud”. That was not in fact her evidence at trial but neither Ms. Garcia nor I caught this. In any event Ms. K.B. said that there was no doubt in her mind that she did say stop and she denied that she misspoke in court the previous time.[^1] All of these exchanges made it clear to me that despite Ms. K.B.’s admission that her memory was fuzzy to some extent, that she remembered saying “stop”. I accept that evidence. Notwithstanding that Ms. K.B. was misled to some extent about her earlier evidence; she remained firm that she told Mr. McCaw to stop. For that reason I do not accept Mr. Frost’s submission that it would be dangerous to rely on the evidence of Ms. K.B. as to what she said.

[151] Ms. K.B. was also taken to the transcript of her police statement by Mr. Frost where she said that during the initial involuntary caressing she said her boyfriend’s name multiple times out loud. Ms. K.B. said she forgot about that part. Mr. Frost then suggested to her that at trial she was saying something quite different and that she had not given this evidence at the preliminary inquiry. Ms. K.B. testified that now that she had heard it, she remembered it. As for why she did not give this evidence at the preliminary inquiry, Ms. K.B. said that she was very nervous then, and that when she gets nervous, she tends to forget a lot of things. I note however that counsel agreed that this was not put to Ms. K.B. at the preliminary inquiry. Mr. Frost however stated that she was taken through the narrative of events and that she didn’t volunteer it. In light of her explanation I did not consider this a significant omission and did not find that this adversely impacted on Ms. K.B.’s credibility.

[152] Ms. K.B. testified that it could have been maybe five minutes from the time she felt someone touching her to the point when she realized that person was Mr. McCaw but she didn’t know. She believed this was around 5:30 a.m. to 6 a.m. At the time, she still felt drunk.

[153] Mr. Frost took Ms. K.B. to her police statement where she stated that when she woke up, she didn’t know where her bottoms were, and she told police that “he’d thrown them somewhere”. Ms. K.B. said that she was assuming that was what happened because Mr. McCaw was the one who did these things to her. She assumed he took off her clothes and put them somewhere. She did not see him throw them anywhere because she was passed out.

[154] Mr. Frost also took Ms. K.B. through some of her police statement where she told them that the guys had gone to the bar after she fell asleep on the couch. Ms. K.B. testified that she did not remember any of this happening - it was what she had been told by Mr. S.L. and Mr. M.H. She denied having any memory of this at the time. She had a conversation with each of them right after it happened but did not talk to them together. I accept this explanation-it makes sense.

[155] Ms. K.B. told police that she had fallen asleep and that Mr. S.L. came back from the bar and fell asleep. When Mr. Frost cross-examined her on the fact that she said they fell asleep, Ms. K.B. testified that she “passed out” and that she was unconscious. She said that sometimes she used the words “passed out” when she meant falling asleep and that she meant to tell police that she passed out. She was not even willing to consider that it was a possibility that she was not passed out. Ms. K.B. also denied the suggestion that it was possible that she might have been conscious between the time she said that she passed out to when she realized someone was touching her. Nothing had changed from the night before that led her to think that she might have gotten up and walked around.

[156] When Mr. Frost put to Ms. K.B. that she could not say who started the sexual contact between her and Mr. McCaw, she admitted that she could not but added “I know that he did it so please just stop.” Ms. K.B. testified that at no time did she consent to Mr. McCaw touching her. When Mr. Frost then put to her that she did not know if Mr. McCaw sought her consent or not she answered that she was not even able to consent and that she did not remember being asked and that she was passed out. She queried: “how can you consent if you’re asleep - if you’re passed out.” Finally Ms. K.B. denied the suggestion by Mr. Frost that she was embarrassed about engaging in intercourse with Mr. McCaw and that that is what led to these allegations.

[157] Mr. McCaw admitted that the last memory he had of Ms. K.B. was her being on the couch passed out. If Mr. McCaw passed out shortly after 4:15 a.m. and he awoke to having sex with Ms. K.B. at around 6:00 a.m., that means he has no memory of 1¾ hours of time.

[158] Mr. McCaw admitted that Ms. K.B. was naked underneath him but he had no memory of how her clothes were taken off. Mr. McCaw testified that he was also naked and that he has no idea how he managed to get his clothes off. He had no memory of doing anything to ascertain that he had her consent to have sex with her and that he could not say that he asked for her permission to have sex with him. He could not say if she was completely passed out when he started having sex with her. He did not remember saying: “I’m going to come” although he admitted it was possible. He said his first memory was that he didn’t even know what was going on and who he was with. It felt “almost like it is a memory of a dream”.

[159] Mr. McCaw recalled Mr. Frost suggesting to Ms. K.B. that she initiated sexual contact. Mr. McCaw admitted that he has no memory of Ms. K.B. initiating any sexual contact with him at all, including kissing him or any of that. Furthermore, he did not recall kissing Ms. K.B. at the bar. However, Mr. McCaw was not prepared to accept that Ms. K.B. was passed out on the couch up until the point where he was having sex with her. He would only accept that as a possibility. He said he couldn’t accept that as a fact without a memory.

[160] Mr. McCaw testified that he has no memory from the period from about 4:15 a.m. until he woke up on top of Ms. K.B. He said that his next memory felt like almost a dream, and then he heard, “don’t come in me” and he responded by managing to get out the words: “I already did.” Mr. McCaw testified that he was right at the point of climax at that point and he was still inside her although not moving and that he had already ejaculated inside Ms. K.B. He then moved aside and Ms. K.B. got up, grabbed some clothes off the floor and ran upstairs.

[161] Mr. McCaw testified that when he heard Ms. K.B. say: “don’t come in me” and he looked down and saw who he was with, and realized that he was on the couch and that Ms. K.B. was underneath him that “snapped me a bit back to the real world” - “it was a shock to me, and I froze”. He said that he was “vaguely aware” of having sex, but up until that point, he didn’t know he was penetrating Ms. K.B. vaginally, where he was, or “anything like that”.

[162] When Ms. Garcia put to Mr. McCaw that it was possible that Ms. K.B. said “stop” he answered that he would never forget “hearing those words” i.e. “don’t come in me”. When she suggested to him that it was possible that he said to Ms. K.B. that he was going to come, Mr. McCaw admitted that that was possible. He also admitted that he did not know if her words were in response to him saying “I’m going to come” and her saying “stop” or “don’t come in me” or something in the negative in response to what he said.

[163] Mr. McCaw testified that his memory was “very, very hazy - almost like after you’ve woken up from a dream, and you can kind of remember a piece here or a piece there”. He said that he couldn’t remember anything specific. Mr. McCaw testified that he had had dreams about having sex before and woken up and not been able to remember anything, and said that this was the best way he could describe it. It was during that time that it was “kind of dawning on me that I was with Ms. K.B.” and the situation he was in, namely, having sex with his roommate’s girlfriend.

[164] Mr. McCaw was fair in admitting that he had no idea whether his actions were made in an automatic state or that he was just drunk and can’t recall making a bad decision. He testified that he could not believe that in any state that he would have taken advantage of Ms. K.B. but he could not rule it out.

[165] Mr. McCaw testified that he just sat there and couldn’t believe what situation he was in. He liked his relationship with Mr. S.L. and at this point, he thought it was over and he would have to find a new roommate. He was hoping that maybe they could talk and he could tell him that he was sorry and that he wouldn’t have done it knowingly if he wasn’t “messed up”. He said he was “all worried about the whole roommate relationship”. Mr. McCaw did not believe he was raping Ms. K.B. at that time and this did not cross his mind. At that point, he didn’t have any concerns for Ms. K.B.

The events after the alleged sexual assault

[166] Ms. K.B. testified she picked up any clothes she could find at a moment’s notice and went upstairs, naked, to Mr. S.L. who was sleeping in his bed in his room. Ms. K.B. thought she’d grabbed everything but based on the photographs it appears that she only grabbed her bikini. She’d believed it was either on the couch or near the couch. Based on the photographs her shorts were the furthest from the couch; on the floor, which is why she assumed that Mr. McCaw had thrown them. Her tank top was on the couch next to a cushion. To come off it had to be pulled over her head.

[167] Ms. K.B. told Mr. S.L. that “Cameron raped me” and she asked him to get all of her things and that they should leave. Mr. S.L. testified that his next memory was waking up the following morning to Ms. K.B. barging into his room, completely naked. He did not wake up at any point during the night and he did not recall hearing anything either. Mr. S.L. described Ms. K.B. as frantic and scared. She told him that “Cameron raped me” or “Cameron fucked me”. He didn’t know which, but it was one of these two statements. He tried to comfort her. She did not ask him any questions about what he did that evening at that time, nor did he tell her.

[168] Mr. McCaw testified that after Ms. K.B. went upstairs, he heard her crying and he heard Mr. S.L. yell, “WHAT?” in disbelief. He assumed that Ms. K.B. had told Mr. S.L. about what just happened and the crying he assumed was that she, in the light of day, also “regretted” it. He admitted that it was clear to him that something was terribly wrong and that both Ms. K.B. and Mr. S.L. were upset. Mr. McCaw also testified however, that he was assuming that “we had just both made a horrible mistake”. He denied that it occurred to him that he had done something terribly wrong or that he had had sex with Ms. K.B. while she was passed out without her consent. He was just thinking how did this happen and that he couldn’t believe this had happened. He testified that he did not know why, if it was consensual and Ms. K.B. had made a mistake, she would run upstairs to her boyfriend crying and telling him all about it.

[169] Mr. S.L. testified that he told Mr. K.B. that they were going to leave and to put her stuff into her bag and they would call a cab. She started to put things away in a bag, and Mr. S.L. believed she called a cab. In the meantime, Ms. K.B. still felt drunk and was puking in the washroom because she drank too much. She found it difficult to stand up and was very dizzy.

[170] Mr. S.L. went downstairs and grabbed Ms. K.B.’s things and to see if Mr. McCaw was still present, which he was. Ms. K.B. did not go downstairs with him at the time. Mr. S.L. testified he saw Mr. McCaw standing a few feet away from the couch, facing out towards the window, shirtless and wearing shorts or boxers. Mr. McCaw turned around and seemed surprised to see him, and made some sort of exclamation, like, “Hey, buddy”. Mr. S.L. did not remember if he responded, but he might have said something. After being taken to his evidence at the preliminary inquiry, Mr. S.L. admitted that Mr. McCaw might have only said “hey”.

[171] Mr. S.L. admitted that when he saw Mr. McCaw something seemed off. He testified that he couldn’t explain it in words but that Mr. McCaw seemed really surprised and jumpy and very shocked to see him and that he had come downstairs. It didn’t seem as though he was expecting Mr. S.L. to be there, and his reaction wasn’t what he would normally say which would be like “Hey, how’s it going?” or “Good morning, how are you?” It was out of character for Mr. McCaw from the way he normally acted. Mr. S.L. testified that Mr. McCaw did not seem to be acting like himself - he seemed “kind of like a caricature of, you know, like a drunk person, or the way they, like, the way they like, the way they, their intonation when they speak and their general demeanor.”

[172] According to Mr. McCaw, after a decent interval of time had elapsed, maybe an hour or two, Mr. S.L. came downstairs and looked at him with a stern look on his face and he said, “We will talk about this later.” Mr. McCaw admitted that it was a bit of an intimidating thing for Mr. S.L. to say but testified that although he said it seriously he did not say it aggressively. Mr. McCaw testified that he thought, “Okay – maybe it [the roommate relationship] doesn’t have to be over.” He was hopeful that they would be able to move past this but he was also doubtful that they would. He denied feeling a concern for his safety because he slept with his roommate’s girlfriend and that he grabbed a pair of scissors and pretended to be asleep. He testified that Mr. S.L. was smaller than him and that if he really attacked him, Mr. McCaw said he would use his hands. At this point, he still was not thinking about Ms. K.B. very much. He did not have a very clear recollection of what was going through his mind. He admitted that his primary concern was his relationship with Mr. S.L. He said that when he heard Ms. K.B. crying he felt bad for her because she was obviously not happy.

[173] Mr. S.L. didn’t remember doing anything before going back upstairs to get Ms. K.B. He was not asked about what Mr. McCaw testified to that he allegedly said. He testified that he helped Ms. K.B. put some of her clothes and her personal effects into a bag and they went downstairs to leave.

[174] The second time Mr. S.L. saw Mr. McCaw he testified that he was on the couch sleeping or in a position that reminded him of sleeping with his eyes closed and his head back. He distinctly remembered Mr. McCaw being passed out or asleep, grasping a pair of scissors on his chest with his hand over them. Ms. K.B. testified that when they came downstairs, Mr. McCaw did not react at all. His eyes were closed and it looked like he was sleeping on the couch with a pair of scissors in his hand. She didn’t really want to look at him, so she could not say what he was wearing. The photographs show a pair of scissors on the table at the end of the couch.

[175] Mr. McCaw did not remember holding scissors on the couch at any point. He did not remember seeing Ms. K.B. and Mr. S.L. leave from the apartment. He testified that he did not know that they left the apartment until he came back from his mother’s birthday lunch.

[176] Mr. S.L. believed they left by cab around 9 or 10 a.m. and got to Ms. K.B.’s house, where she was living with her aunt, at about 10 a.m. but he said this was a guess – it was pretty early. When they told Ms. K.B.’s aunt what took place, there was a discussion about whether she should go to the hospital, and the decision was made that she would go. They did not have any discussion about the chronology of what happened. Ms. K.B. was hesitant about going and didn’t want to leave right away. Once she slept for a bit and was feeling better, they went to the Toronto Western; she thought it was around 3 p.m. and she had a rape kit done there. Mr. S.L. left Ms. K.B. at the hospital and went back to the apartment to collect his things as he wanted to move out. He found some of Ms. K.B.’s clothing on the couch and some on the floor very near to the couch.

[177] The rest of the morning for Mr. McCaw was a blur. He remembered putting on his shorts and trying to remember what happened. He couldn’t remember and kept thinking what it meant and whether he could salvage his relationship with Mr. S.L. He didn’t know when but Mr. McCaw testified that he smoked marijuana. He went outside and had several cigarettes and came inside and fell asleep at one point.

[178] Mr. McCaw testified that it was his mother’s birthday party at his aunt’s condo that day, and so he got himself together as best he could and went there for lunch. He felt “mentally absent” the whole time because of what had happened. He was thinking about what a great time he was having living with Mr. S.L., and wondering whether or not the relationship could be fixed. He believes he had a glass of wine at lunch and when he got home from lunch, he smoked a lot of weed in a short period of time so that he could go to sleep. He thought maybe half a gram, namely five bowls, with a bowl being .1 of a gram. He then brought his bong, his marijuana and his grinder upstairs to his bedroom.

[179] Mr. McCaw admitted that he had the opportunity to think about what had happened and that before he was arrested he could have researched possible defences to sexual assault or talked to any number of people.

[180] Ms. K.B. reported the sexual assault to police at approximately 5:00 p.m. on July 12, 2015. She identified Mr. McCaw as the assailant and provided his address. Police attended at the apartment and arrested Mr. McCaw at 8:41 p.m. Mr. McCaw admitted that he knew why the police were there. When he was arrested Mr. McCaw was calm and co-operative.

[181] The in-car video was entered into evidence by the Crown to show Mr. McCaw’s demeanour at the time of his arrest. It shows Mr. McCaw sitting upright; not slouching, being calm and showing no emotion. He did not say anything during transit. Mr. Frost introduced the booking video when Mr. McCaw was paraded before Staff Sergeant Prentice at 9:17 p.m. Initially Mr. Frost was going to bring an Edgar application so that he could introduce alleged exculpatory utterances made by Mr. McCaw when he was paraded but he abandoned that before the end of the trial. Counsel agreed that I should not consider any inconsistencies between what Mr. McCaw told police and his evidence at trial but that I could consider his demeanour in the booking video. Based on my observations of the booking video there is very little evidence of any remaining intoxication although Mr. McCaw’s speech may have been a little slurred. He was certainly responsive to the questions and articulate. PC Todd Wilson who was one of the arresting officers noted that Mr. McCaw looked pale, sweaty and nervous. He also noted that he was pretty calm and described this as “like a blank stare”. As for the booking video Mr. McCaw testified that he slurred his words but he admitted that he was speaking coherently, responding in a way that made sense and asking a logical question.

Discussions about the events between the witnesses

[182] I have already reviewed Ms. K.B.’s evidence about discussions she had with Mr. S.L. and Mr. M.H. about what happened. Mr. S.L. admitted that he might have told Ms. K.B. what he had done that evening before police interviewed her but he could not remember. Mr. S.L. couldn’t say when he and Ms. K.B. spoke about what had happened, but that they did talk about it at some point. They would have talked about what exactly happened the night before and what they each did and what happened afterwards and what happened in the morning. He said that it would have likely been multiple discussions, but that was just conjecture on his part. He said this likely took place at Ms. K.B.’s aunt’s place, but he was not certain.

[183] Mr. Frost asked Mr. M.H. if he discussed the allegations with Ms. K.B., and he said that he was speaking to Mr. S.L. a week later on the telephone, and Mr. S.L. told him that something bad had happened. He insisted on speaking to Ms. K.B.. Mr. M.H. didn’t recall the details of his discussion with Ms. K.B. but he testified that she told him that Mr. McCaw raped her although he could not recall the exact words that she used. He told Ms. K.B. that he tried to wake her up and that she was passed out. He did not speak to her about what happened while she was passed out - she told him that she didn’t want to speak about it. She was very traumatized and so he didn’t discuss it further with her. He was shocked, and told her he was very sorry. Mr. M.H. denied speaking to Ms. K.B. at the preliminary hearing or speaking to her or Mr. S.L. in the last few days before giving evidence.

[184] Mr. C.A. testified that he hadn’t spoken to Mr. McCaw about the allegations and that the last time he spoke to Mr. McCaw was around the time of the incident. Ms. K.B. testified that the Sunday before she gave her evidence, which would have been May 27th that Mr. C.A. called her and told her that he was at XXX Marlee on the night in question and that he “might” have brought G there that evening. Ms. K.B. testified that she didn’t remember Mr. C.A. being there and in fact none of the other witnesses suggested that he was at Mr. S.L.’s apartment on the night of the incident. As I have said, Mr. C.A.’s evidence was different than what he told Ms. K.B.

[185] Mr. J.B. denied knowing about the criminal charge facing Mr. McCaw until recently. He knew from the media that Mr. McCaw was advancing a defence of self-induced intoxication. When he asked Mr. McCaw about it, Mr. McCaw was very vague and told him that he might need Mr. J.B. to come to court. Mr. J.B. testified that two months before trial a forensic psychologist or psychiatrist was supposed to talk to him about the time that Mr. McCaw went to hospital after consuming GHB, but that person never got in touch with him.

The evidence of alcohol in the apartment

[186] DC Patching took photographs throughout the apartment. In doing so, she photographed items in their original location without moving them first. The photographs taken by D.C. Patching of the inside of the fridge show no evidence of any cans or bottles of beer. The photograph of the garbage can at the end of the kitchen counter shows the plastic bladder that everyone assumed had red wine in it and was the wine that Mr. McCaw said he drank. There appears to be another wine bottle next to it, which based on another photograph is red wine, but there was no evidence that a bottle of red wine was consumed on July 11/12th. Mr. S.L. was the only one who was shown the photograph of that bottle and he testified that as far as he knew, no wine was consumed on July 11/12th.

[187] As for beer, the evidence based on the photographs is that there were a total of three cans and one bottle of beer in the apartment at the time of Mr. McCaw’s arrest. A Kronenbourg beer can be seen on top of the garbage can at the end of the kitchen counter and DC Patching testified that she picked out the beer bottle and the beer cans from the garbage can and laid them out and took a picture of them. That photograph that shows two 500 ml cans (5% alc./vol.) of Kronenbourg beer, one can of Molson Canadian (473 ml can) and one bottle of Stella Artois. On the computer desk there is one can of Pabst Blue Ribbon beer (473 ml/4.00 alc./vol.).

[188] Mr. McCaw’s believed that Mr. S.L. had three or four beers, out of a six-pack; which he thought were Stella because there was only one Stella bottle found in the apartment. Mr. S.L. testified that Kronenbourg was his favourite beer and there were possibly two of those consumed that night. There is only one can of Molson Canadian beer, which could have been one of the beers Mr. M.H. testified he brought but that does not explain where the other two or three cans went. Mr. M.H. was not asked if he took the cans he brought home once they were empty.

[189] Neither counsel asked the witnesses about the evidence of alcohol in the apartment based on these photographs although Ms. Garcia did refer to this in her submissions. The one can of Pabst beer is consistent with Mr. McCaw bringing a can of Pabst beer back from the bar as that is the type of beer he said he ordered the first time they went but there is no evidence then of the can that he said Mr. M.H. brought back unless it is one of the cans that ended up in the garbage. This evidence is also not consistent with Mr. M.H.’s evidence given he did not say he brought Kronenbourg beer or Stella. Mr. S.L.’s evidence supports what was found, namely that there were some left overs. I find it likely that the two bottles of Kronenbourg beer and the Stella were consumed by Ms. K.B., Mr. S.L. and Mr. M.H., and in any event they did not all consume as many beers as suggested by their evidence.

Assessment of the Reliability of the Witnesses

[190] The reliability of the evidence of all of the witnesses is in question. Mr. C.A. had no idea he was going to testify until trial about events that took place three years earlier. He also admitted that at the time of the event he was testifying about he was high on alcohol and GHB. Mr. J.B. experienced a frightening incident with a good friend but he too had no idea he was going to testify until trial about events that took place three years earlier.

[191] As for the other witnesses, if I accept Mr. M.H.’s evidence as to what he consumed then his evidence is the most reliable. Ms. K.B. and Mr. S.L. fairly admitted that because of what they drank at the pool party and afterwards, that their memory of events was impaired to the point where they could not recall what happened during part of the night.

[192] Similarly Mr. McCaw testified that because of his consumption of marijuana, alcohol and GHB that his memory was impaired and that eventually he had no memory.

[193] I concluded that at least in so far as Ms. K.B., Mr. S.L. and Mr. McCaw are concerned, the fact they were at least drinking and in the case of Mr. McCaw, he was consuming marijuana, that this would impact the reliability of their memory of what happened.

[194] I considered whether the discussion about these events between Ms. K.B., Mr. S.L. and Mr. M.H. affected the reliability of their evidence. I concluded that it did not. Although they discussed what happened, that would be expected in the circumstances. It did not appear to me that they discussed the event in any detail. There were many differences in their accounts of what occurred, which to my mind makes that clear. Had there been any collusion those differences would not have occurred. I therefore concluded that any discussion of the event did not impact adversely on the reliability of their evidence before me.

[195] In addition, it must be remembered that three years had passed from the time of the alleged sexual assault to the trial. In this regard, apart from Mr. C.A. and Mr. J.B., Mr. M.H. was also at a disadvantage since he did not give his statement to police until December 2015.

Assessment of Credibility of the Witnesses

Mr. C.A.

[196] Apart from concerns over the reliability of Mr. C.A.’s evidence, I have no hesitation in accepting his evidence as true. He was fair and forthright, appeared to have no partiality for any party and was responsive to all questions.

Mr. J.B.

[197] Unfortunately I am of the view that Mr. J.B. was not forthright. He seemed determined to make the incident when Mr. McCaw overdosed more serious in terms of the amount of GHB and alcohol that Mr. McCaw consumed that what the hospital records record the paramedics were told Mr. McCaw in fact consumed at that time. Although I accept that Mr. J.B. did not fully acknowledge the truth of the statements that are recorded in the hospital records or even that he was the one who made those statements to the paramedics, I find the information recorded in the records that Mr. McCaw had consumed three doses of GHB and that they had shared a bottle of whiskey were statements that were made by Mr. J.B. to the paramedics, given Mr. J.B.’s evidence regarding speaking to the paramedics that were at the ambulance that Mr. McCaw was in. Furthermore Mr. J.B. was the one who had whiskey with Mr. McCaw, not Gord. There is no reason to believe that the paramedics would have incorrectly recorded what Mr. J.B. told them. Mr. J.B. admitted that this was when his memory was the freshest and he acknowledged the obvious - that he needed to be truthful so that his friend could be properly treated. I do not accept his evidence at trial that those amounts were both low. The only reason I can think of for the changes in his evidence would be that he wanted to make Mr. McCaw’s consumption of alcohol and GHB greater at that time as it resulted in a serious overdose which did not occur on the night Mr. McCaw had intercourse with Ms. K.B. when Mr. McCaw’s evidence was that he consumed considerably more than three doses of GHB. As for Mr. J.B.’s evidence as to how Mr. McCaw reacted to the GHB at that time, I will approach his evidence with some caution as a result.

Ms. K.B.

[198] I found Ms. K.B. to be a credible witness. Her demeanour did not change in cross-examination and she was very fair in admitting certain facts were possible because of the state of her memory due to what she had had to drink. She sometimes took time to think before she answered a question which to me suggested that she was being careful to ensure her answer was accurate. She also had no hesitation in admitting that she had done GHB before with Mr. S.L.. As for the alleged inconsistencies in her evidence at trial as compared to her evidence to police and at the preliminary inquiry, I have already explained why I do not find that they undermine my confidence in Ms. K.B.’s evidence. Subject to the concerns I have stated I have with respect to the reliability of her evidence, I accept all of her evidence.

Mr. S.L.

[199] Mr. S.L. admitted lying when he gave evidence at the preliminary inquiry that he had never done G even once before. At that time he claimed to not even know what G was. At trial Mr. S.L. did not need to be taken to the transcript of his evidence when Mr. Frost suggested this to him. He said he accepted that he did not tell the truth. To explain this Mr. S.L. denied trying to distance himself from having done G on the night in question, but rather, he testified that he tried to distance himself from taking any drugs that night. Mr. S.L. admitted that he did a lot of recreational drugs on the weekends at the time of this incident, and as he got older and began to work and establish his career, he wanted to move past that and leave that in the past and that on some level he wanted to forget about this incident. That is why he gave a false statement regarding drug use in the past.

[200] Mr. S.L. testified that he felt terrible immediately after he lied in front of the Judge because Mr. Frost had pressed him on this issue and he “dug in”. Mr. S.L. said he didn’t tell the Crown or the officer in charge about this as he felt it would ruin his reputation and invalidate everything else that he had to say. Mr. S.L. felt that if you make a bad decision and then lie, it will have an impact on other people’s perception of you and the integrity of your other statements.

[201] It is obviously a very serious matter for a witness to lie under oath. It necessarily must give me concern over the veracity of the rest of Mr. S.L.’s evidence at trial that is disputed by Mr. McCaw. That said, I accept Mr. S.L.’s evidence that he was trying to distance himself from using drugs at the time generally, not just on the night in question. I also agree with Ms. Garcia that given he was expecting to be asked questions about the alleged sexual assault of Ms. K.B. that he would not have been expecting questions about drugs, especially if I accept his evidence that they did not consume GHB on the night in question. Although I have given his evidence less weight as a result of this serious issue I would not conclude that he was not otherwise a credible witness. As Ms. Garcia submitted, once Mr. S.L. admitted that he lied and had used GHB before July 11/12th there would be no reason for him to lie about using GHB on July 11th.

[202] Mr. Frost argued that Mr. S.L. testified to a narrative and forgot about Ms. K.B.. He put to him in cross-examination that at the preliminary inquiry he said that she was at the bar. Mr. Frost submitted that his evidence was all over the map. If I were to apply this standard I would not be able to make any findings of fact. Each of the witnesses who were present that night gave a different version of the chronology.

Mr. M.H.

[203] Overall, Mr. M.H. struck me as a credible witness. He did get his back up at times when he was being cross-examined by Mr. Frost. Ordinarily I would consider that a signal of hostility towards the Defence and it would impact adversely on my views of the witness’ credibility. In this case however, I do not believe that was the problem. In my view, Mr. M.H. was genuinely confused about why he was being asked certain questions and I agree with Ms. Garcia that his reaction to Mr. Frost may well be due to the fact that he is feeling some responsibility for leaving Ms. K.B. passed out on the coach.

[204] Mr. M.H. was asked who Mr. C.A. was friends with and when he was asked who, he responded to Mr. Frost, asking why he was asking about this person, “What does it have to do with anything right now?” Mr. M.H. then said that Mr. C.A. was a friend of both Mr. S.L. and Ms. K.B. and that he had met him once or twice. He didn’t know Mr. C.A. very well. After Ms. Garcia objected and I directed Mr. M.H. to answer, he said that Mr. C.A. was friends of a guy called Chris and someone called Andrew, but again he said he didn’t see the relevance. He said he didn’t know their last names. When asked if he knew Mr. C.A. to be a drug dealer, he said he had no idea. Mr. M.H. insisted that he had met Mr. C.A. once or twice only and that he had never known that he did drugs and that he didn’t know him. Although Mr. C.A. might fit the legal definition of a drug dealer, because he would share his G with friends there was no suggestion put to him that he was a drug dealer in the sense that term is used. He gave no evidence about selling drugs. Mr. C.A. also did not give any evidence that Mr. M.H. was anything other than someone he knew.

[205] When Mr. Frost asked Mr. M.H. if he was a weightlifter and whether it was part of his lifestyle, he asked: “where is this going?” and that he thought it was too personal. Mr. Frost then asked Mr. M.H. if GHB was something that weightlifters used to which Mr. M.H. asked why would they. Mr. Frost suggested that it gives you a good night’s sleep and allows muscles to relax so you can push more weights the next day. To that Mr. M.H. said that he had never heard that nor had he ever heard of anyone talking about GHB at the gym. There is no evidence before me of any connection between GHB and weightlifting. There is also no evidence before me that contradicts Mr. M.H.’s evidence that he did not use GHB.

[206] Mr. Frost argued that Mr. M.H.’s evidence was not reliable because when he gave his narrative of what happened Ms. K.B. never went to the bar at all - she never left the apartment. He also did not testify about carrying her upstairs. That is true but it is clear that each of the witnesses have different chronology of events that they recall.

[207] Ms. Garcia submitted that Mr. M.H. also felt guilty about what happened since he left Ms. K.B. on the couch and was the last person to see her before the alleged sexual assault. She submitted that it makes sense that he would feel defensive and upset. Although that may be possible, Mr. M.H. was not asked this so in my view cannot accept this theory.

Mr. McCaw

[208] Mr. McCaw presented as a polite well-spoken young man. I was not able to come to any conclusions as to Mr. McCaw’s credibility based on his demeanour as he did not seem hostile to the Crown. In many respects I found him to be a fair witness. His answers as to whether or not he believed he was in an automatic state or not when he had intercourse with Ms. K.B. were fair as he admitted that he couldn’t rule anything out because he remembers nothing. He also eventually admitted that the possibility existed that Ms. K.B. was passed out and he made a horrible decision in a moment he regrets.

[209] However, I would not say that Mr. McCaw was responsive to all of the Crown’s questions. He seemed to be a very careful witness when he answered many of the Crown’s questions and although that is usually a virtue, my impression was that if he could avoid making an admission or being responsive to certain questions asked by the Crown because of his admitted fuzzy memory or lack of memory he would often do so. He did not want to get pinned down where possible. For example even though he had no memory of Ms. K.B. speaking or coming to after she was put on the couch he would only agree that it was a possibility that she was passed out on the couch up until the point where he was having sex with her. He said he couldn’t accept that as a fact without a memory or without knowing. He also testified that he was f**ked up but wouldn’t admit that this would have been observable to Mr. M.H. because he could not see himself “through someone else’s eye’s” and that he did not know how he appeared. I also found that his evidence that he did not know why Ms. K.B. would have run upstairs to Mr. S.L., if they had both had consensual sex and had made a mistake to be evasive and an attempt to avoid giving an obvious answer.

[210] On the other hand, on certain details Mr. McCaw insisted he had a clear memory, often of something I would not expect him to remember clearly and something that assisted in his defence. For example, I find it very hard to believe he would have a clear memory of Mr. S.L. meeting him half way down the stairs after he found the bag with the used water bottle or of the fact that the bottle was full or the fact that he looked at his watch when Mr. M.H. left.

[211] I also found that many times Mr. McCaw would answer questions; for example about the level of intoxication of Mr. S.L. and Ms. K.B. and whether or not Ms. K.B. was awake or not once she was put on the couch, by qualifying his answers by saying he was not monitoring what they had to drink or in the case of Ms. K.B. whether or not there were any signs of her being awake by opening her eyes while she was lying on the couch. He clearly wanted to leave open the door to suggest that the sex was consensual. He also unreasonably refused to answer a couple of questions-for example he refused to use a Sharpie to mark how full the bottle of GHB was.

[212] Notwithstanding these concerns, for the most part, where I have found issues with Mr. McCaw’s evidence, it is because it is simply unbelievable. I will explain that as I do my analysis and make my findings of fact.

[213] There were inconsistencies between what Mr. McCaw told Dr. Gojer and Dr. Rosenbloom and what Mr. McCaw testified to at the trial. For example he told Dr. Gojer that he took six or seven doses of GHB but in his evidence he said that he took six to eight capfuls because his final dose was a double - a bigger swig.

[214] Mr. McCaw told Dr. Gojer that he had been abstaining from alcohol and drugs since 2015 and that his family was under the same impression. Ms. Garcia took him to a Peel Village report of March 19, 2018 that was not referred to in Dr. Gojer’s report. Those records state that Mr. McCaw reported to the doctor that he rarely uses recreational drugs and consumes zero to seven alcoholic beverages per week. Dr. Gojer admitted that this meant that Mr. McCaw was not being totally truthful with him.

[215] Mr. McCaw told Dr. Rosenbloom that he began drinking at 7:00 p.m. and he told Dr. Gojer it was 4:40 p.m. Ms. Garcia argued that she asked Mr. McCaw if he had any issues with their reports but she did not put these particular statements to him. That said it is clear from his evidence that by his own admission he really has no idea what time he started drinking.

[216] In my view, if Ms. Garcia wanted to challenge Mr. McCaw on these inconsistent statements to Drs. Rosenbloom and Gojer, she had to put the specific statements that she was challenging directly to him. Section 10(1) of the Canada Evidence Act provides in part that where it is intended to contradict a witness on a previous statement that “the witness’s attention must, before the contradictory proof can be given, be called to those parts of the statement that are to be used for the purpose of so contradiction the witness” [emphasis added].

[217] This evidence can be considered for other purposes however, For example, Dr. Gojer was questioned on why he did not challenge Mr. McCaw on this because he did not see that note. This goes to the thoroughness of his assessment.

The Expert Opinion Evidence

The Defence Experts

[218] Ms. Garcia challenged the admissibility of both of the proposed defence expert witnesses on the basis that they were biased and not properly qualified. After hearing the evidence and submissions from counsel I gave oral reasons for ruling that Dr. Gojer could be qualified to give opinion evidence. I will not repeat those reasons here save to the extent they become relevant to my consideration of the reliability and credibility of his evidence. With respect to Dr. Rosenbloom, as I will explain, after a discussion with counsel and agreement that his opinion evidence would be limited to certain areas, I determined that he could testify as an expert pharmacist.

[219] Ms. Garcia filed numerous cases where Dr. Rosenbloom or Dr. Gojer had been tendered as expert witnesses and negative comments were made about them by the trial judge. She cross-examined each of them on these cases without objection. Unfortunately at the time, I was not aware of the decision of the Court of Appeal in Bruff-Murphy (Litigation guardian of) v. Gunawardena, 2017 ONCA 502, where the court held that the trial judge did not err in ruling that the expert could not be cross-examined regarding prior court and arbitral finding made against him. As a result I have not considered the evidence with respect to these other findings in my assessment of the opinion evidence of either Dr. Rosenbloom or Dr. Gojer.

Evidence of Dr. David Rosenbloom

[220] Ms. Garcia argued that Dr. Rosenbloom’s evidence should not be permitted on the grounds of bias and challenged his qualifications to give expert opinion evidence as tendered. In the original Notice of Expert Testimony, it was stated that Dr. Rosenbloom would testify in the area of “toxicology, including but not limited to the nature and effect of intoxicating substances and their impact on cognition” [emphasis added]. In Dr. Rosenbloom’s report dated May 24, 2018, (“Report”) he stated that he believes he is qualified to provide an opinion as to the possible effects of drug and alcohol consumption on “memory, levels of consciousness, and judgment”. The Notice dated September 12, 2018, stated that Dr. Rosenbloom’s area of expertise is as a “Pharmacologist/Pharmacist with expertise in the nature of and effect of intoxicating substances and their impact on the human body” [emphasis added].

[221] After hearing considerable evidence from Dr. Rosenbloom on his qualifications, I confirmed with Mr. Frost that in light of his latest Notice, he was only going to ask Dr. Rosenbloom to comment on the physical effects of intoxicating substances, not on cognition. I also pointed out to Ms. Garcia that as this was a judge-alone trial, she would be able to make her submissions with respect to alleged bias at the conclusion of the case.

[222] After further discussion with counsel, Ms. Garcia agreed not to object to my qualifying Dr. Rosenbloom to give opinion evidence as a pharmacist with training in pharmacology and to speak to the nature and effect of intoxicating substances in this case: alcohol, marijuana and GHB and their impact on the human body, as well as give evidence on the different levels of intoxication and blood alcohol concentration (“BAC”). Dr. Rosenbloom would be permitted to give opinion evidence as to how intoxicated someone in the position of Mr. McCaw would be, having consumed those substances in the quantities Mr. McCaw testified to. He was not qualified to give any evidence in terms of any impact on the mind, cognition or memory and in my view he would not have been qualified to do so.

[223] Accordingly, I accepted Dr. Rosenbloom as an expert to give opinion evidence as a pharmacist with training in pharmacology and to speak to the nature and effect of intoxicating substances; namely alcohol, marijuana and GHB and their impact on the human body in terms of levels of intoxication and BAC.

[224] I ultimately decided not to rely on most of the evidence of Dr. Rosenbloom and in fact his evidence was not relied upon by Mr. Frost at all during his closing submissions. My principle issue with Dr. Rosenbloom was that he exaggerated both his own qualifications and, more significantly, in my view, he was not independent but rather behaved as an advocate for the Defence. He did not behave as one would hope an independent expert would.

[225] For example, in terms of his qualifications, Dr. Rosenbloom stated in his Report that “I am” a clinical professor in the Department of Medicine at McMaster University (“McMaster”) and an Associate Member in the Department of Psychiatry, and “I actively teach” both undergraduate and senior medical professionals as well as in the Forensic Psychiatry Program at the university. In addition, the cover page of Dr. Rosenbloom’s curriculum vitae (“CV”) dated April 12, 2018 also states that he is a Clinical Professor with the Department of Medicine at McMaster.

[226] These statements were not true as at the date of Dr. Rosenbloom’s CV or his Report. In his evidence-in-chief, Dr. Rosenbloom said he was on the faculty at McMaster and at the Department of Medicine with the rank of Clinical Professor, but then added that he had recently become adjunct, which meant he had fewer expectations of him time wise in teaching. The questions that followed reviewed his various roles at McMaster and I did not appreciate, as he was giving his evidence, that those were all roles he had performed in the past.

[227] In cross-examination Dr. Rosenbloom was asked about his teaching load and he testified that “I have a group of students” and that “we meet twice a week for three hours each time” as they problem solve. When Ms. Garcia asked him to confirm that “currently” that was the “sum total of your teaching” he said “yes”. When asked if there was anything else he said that in addition, probably once a year, he gives a lecture to licensed practitioners although a little later he said that he had not done that for a couple of years.

[228] As the cross-examination continued however, Dr. Rosenbloom admitted that he was not teaching at all at the time he was giving evidence and he suggested that he had misheard Ms. Garcia, as he advised that he was not participating in learning groups twice a week anymore and had not done so for about a year. He finally admitted that he hadn’t had a teaching load at McMaster since 2016. He then very clearly admitted that he had not taught at McMaster since 2016. The only exception was that he was a facilitator at an Inter-Professional Education Day at McMaster in February 2018 for which he received a $10 Indigo gift certificate. When Ms. Garcia tried to confirm again that Dr. Rosenbloom was not currently on McMaster’s payroll he agreed but said the exception was the gift certificate-he did not appear to be joking.

[229] In my view Ms. Garcia’s questions and Dr. Rosenbloom’s answers were clear and it was only when pressed that he admitted his earlier evidence was incorrect. I believe he intended to make his qualifications appear more current than there are in fact and but for the perseverance of Ms. Garcia I would have been misled.

[230] When Ms. Garcia took Dr. Rosenbloom to his Report where he stated that he is a clinical professor and actively teaches and suggested to him that that was incorrect, he agreed that at the date of writing the Report that he wasn’t actively teaching but that he had been as of February of 2018, and that “I think we’ve got different interpretations”. He suggested that Ms. Garcia was taking a “very literal interpretation”. I don’t know how else one would interpret what he wrote in his Report. Furthermore his answer repeating he had been “actively teaching” as of February 2018 was clearly untrue given that the only thing he had done since 2016 was the one time he was a facilitator at McMaster in February 2018 in exchange for a $10 gift certificate. This illustrated the extremes Dr. Rosenbloom would go to in giving evidence I found to be totally unhelpful, evasive and untruthful.

[231] Dr. Rosenbloom’s Report was typed on what appears to be McMaster University Department of Medicine letterhead. Dr. Rosenbloom testified that this was with approval of the university although I find that hard to believe given the rest of his evidence and the fact that his home address and email is stated at the bottom of the first page as the “Mailing Address”. Furthermore, although Dr. Rosenbloom agreed that he had to provide his medical opinion as an independent healthcare professional, not as an authorized representative from McMaster, he did not agree that the fact that he did not state this in his report suggested otherwise. I do not accept that evidence. Dr. Rosenbloom was obviously using an alleged continuing association with McMaster to bolster his credibility and using McMaster letterhead enhanced that misrepresentation. Dr. Rosenbloom’s denial that this was a reasonable conclusion from these facts was false in my view.

[232] Dr. Rosenbloom was registered under Part B of the Ontario College of Pharmacists as of July of 2018, which means that he cannot provide patient care including filling a prescription. Again, his CV did not make this clear, stating only that he had been a member of the College from 1986 to the present, although as his CV was dated April 12, 2018; this statement was not false as of that date. However, I also found Dr. Rosenbloom evasive in Ms. Garcia’s cross-examination of him on his qualifications in this regard. She put to him that as a pharmacist he couldn’t write a prescription for a drug. In response to that he said that as a pharmacist he prescribed “various medications” as a designated medical act. When Ms. Garcia pursued that to suggest that she was not talking about Advil™ or Tylenol™, but rather, a prescription for a controlled pharmaceutical, Dr. Rosenbloom agreed, but disagreed with Ms. Garcia that that had been her question all along. He suggested she had only asked him if he treated patients, and that he agreed that he had not prescribed medication. That was contrary to his earlier evidence.

[233] Essentially Dr. Rosenbloom is retired from his former life and currently does consulting work for lawyers, primarily if not exclusively defence counsel. He has never testified in court for the Crown.

[234] Ms. Garcia also reviewed a number of court decisions where other judges have commented on the fact that Dr. Rosenbloom approached his testimony as an advocate or that he was not independent and impartial. I did not rely on those decisions for reasons already given but I have come to the same conclusion based his evidence.

[235] Dr. Rosenbloom was also evasive when questioned by Ms. Garcia about an email he wrote to Dr. Mark Pressman on July 20, 2018. Dr. Rosenbloom’s evidence was that his email to Dr. Pressman was about an article about sleep walking and that Dr. Pressman agreed with the opinion he expressed in his email. It was only after extensive cross-examination that Dr. Rosenbloom agreed that the article he wrote Dr. Pressman about was in fact about an article Dr. Pressman wrote called, “Alcohol-Induced Blackout as a Criminal Defence or Mitigating Factor”, (“Pressman Article”), which he agreed was not about sleep walking. Given that he wrote the email to Dr. Pressman two months before giving evidence and given the subject line of Dr. Rosenbloom’s email I did not accept that his confusion about which article he was referring to was genuine. I can only assume that he wanted to distance himself from an article that does not support his position on alcohol induced automatism.

[236] Dr. Rosenbloom also made assumptions that favoured the Defence. For example, when he did his BACs he assumed 14% alcohol content for the wine Mr. McCaw consumed and would not agree that most red wine has an alcohol content of between 11.5 and 13.5%. Dr. Rosenbloom may be correct in terms of the Malbec wine that he referred to but that is clearly not the type of wine that Mr. McCaw was consuming. More importantly, for the Pabst Tallboy that Mr. McCaw testified he consumed, Dr. Rosenbloom assumed 5.9% alcohol even though the photos of the Pabst Tallboy that was actually consumed show an alcohol content of 4.9%.

[237] When Ms. Garcia asked Dr. Rosenbloom to redo his calculations with the alcohol content of the wine at 12% and the Pabst beer at 4.9%, Dr. Rosenbloom admitted that he was not able to redo the BAC calculations from scratch. He used a computer program to do his initial BACs and testified that he could not do a BAC without the use of his computer program. As a result Dr. Rosenbloom did some rough calculations in Court, which established a much lower BAC and he agreed that his BACs had been impacted by the percentages he used for the alcohol content of the wine and the beer. When it was put to Dr. Rosenbloom in cross-examination that by doing so he knew it assisted in the Defence argument that Mr. McCaw was very intoxicated at the relevant time, he said he wasn’t sure that was “fair” because Ms. Garcia had not taken into account the GHB that was consumed and then he added: “or allegedly consumed”. That was not a responsive answer to the question. Dr. Rosenbloom then admitted he knew that his report was being used to assist in the argument that Mr. McCaw was very intoxicated, and in my view, his BACs and his assumptions were influenced by that.

[238] This evidence also caused me to question how qualified Dr. Rosenbloom is to do BACs in the first place. To the extent that his recalculations done during the course of the trial differed than the ones that Ms. Hird did, I prefer her evidence.

[239] These are only some of the issues that I had with Dr. Rosenbloom’s evidence. As a result of these concerns I gave no weight to his evidence in reaching my conclusions on the issues of the level of Mr. McCaw’s intoxication or on the issue of automatism.

Evidence of Dr. Julian Gojer

[240] I ruled that Dr. Gojer was qualified as an expert to give opinion evidence as a forensic psychiatrist in assessing, treating and managing mental illnesses, substance use disorders, including sex offenders, commenting on the mental state at the time of an offence and the effects of intoxicating substances on the mind and body. I advised counsel that I would consider Ms. Garcia’s submissions that Dr. Gojer was biased at the end of the case.

[241] As a psychiatrist Dr. Gojer testified that his medical training included the study of pharmaceutical treatments used to treat a variety of illnesses as well as training in psychopharmacology, which involves understanding not only drugs used to treat a variety of mental illnesses but also what substances can be abused by individuals and how those drugs impact on their mental states. Dr. Gojer testified that he has also had to learn about the effects of alcohol on the human body and mind. This learning came from text books, lectures and conferences and what Dr. Gojer described as the “best teacher;” the patient who advises about what happens when they take a drug or when they come off a drug. He sees these patients in various capacities from patients who want treatment to offenders who want a sentencing report. Dr. Gojer admitted that with respect to patients who have abused drugs, he relies on his own observations and what patients like Mr. McCaw report to him. He presumes that the patients’ self-reports of what they thought happened to them when they were drunk are true although he conceded these self-reports are not always reliable.

[242] Dr. Gojer sits on the Ontario Review Board as both a psychiatric member and as a legal member; he does assessments for the courts or for defence counsel for criminal responsibility and fitness to stand trial matters. He also works at a Probation Office in Toronto where he assesses and treats individuals on probation. Dr. Gojer testified that with those individuals alcohol and marijuana are the most commonly used drugs. He said that he also has a broad practice and does not focus on one area. Dr. Gojer said that he has to learn about the interactions of various intoxicants; what is called potentiation, meaning how two drugs work together to cause an enhanced reaction. He was involved in the treatment of patients with GHB at the Toronto Western Hospital (“TWH”) in the Sleep Department, although he did not prescribe GHB, which he said requires a special licence. However, he would follow the patient. He also testified that he did neuropsychiatry cases while at TWH, which is the branch of psychiatry that deals with brain functioning including how drugs and mental illness involve brain pathology and brain disorders. In that capacity he had the occasion to look at how intoxicants affect neuro function.

[243] Dr. Gojer testified that to give him a baseline understanding of what GHB is, he read various academic texts and he did research for literature on GHB, alcohol blackouts and automatisms. He has been involved in drug studies and trials for other drugs which he said helped him critically evaluate the available research. Dr. Gojer testified that he has dealt with individuals who have abused GHB and those who have suspected that they were administered GHB. Dr. Gojer had never been qualified as an expert to speak about the role of GHB before, although he has been qualified many times to speak about alcohol and marijuana.

[244] Dr. Gojer testified that as a psychiatrist he tends to focus more on the qualitative behavioural effects of drugs whereas a toxicologist considers how drugs are measured in the body and what a quantity of drugs will do to a person’s body; i.e. the quantitative effects of drugs. Dr. Gojer fairly conceded that he can’t give any quantitative opinion with respect to GHB, alcohol or marijuana because that is not his area of expertise. He would defer to a toxicologist on quantitative issues.

[245] The rest of Dr. Gojer’s evidence is very difficult to summarize. It was not only lengthy but many times his evidence in cross-examination seemed to be at odds with his evidence in chief or earlier evidence given in cross-examination. Often that was because Dr. Gojer was making assumptions in answering Ms. Garcia’s questions that were not part of the question she intended. I found it difficult to determine if he was being evasive or not as Ms. Garcia was cross-examining him at a very fast clip and sometimes her questions were not that clear.

[246] Dr. Gojer interviewed Mr. McCaw for two hours after one of his assistants spoke to Mr. McCaw for almost one hour to get his family and personal history. It seems that Dr. Gojer simply asked Mr. McCaw to tell him what happened and for the most part he did not probe his answers. Dr. Gojer did not diagnose Mr. McCaw with any mental illness, parasomnia, trauma or disease of the mind or any dissociative disorder. The defence is based exclusively on intoxication by alcohol, GHB and marijuana.

[247] Dr. Gojer testified that alcohol is a central nervous system depressant that slows down the functioning of the brain and causes inhibition. Initially, paradoxically, a person becomes more talkative, more social and sometimes more aggressive. With increasing consumption of alcohol the inhibition becomes more potent and that person becomes more sedated with slurring of speech, impairment of motor functioning, decrease in the level of awareness to the point that the person might be confused about the surroundings or misinterpret them and eventually pass off into sleep or an alcohol-induced coma. Fine motor skills become impaired and the more the person drinks the more impaired they become.

[248] Dr. Gojer testified that GHB has been used as a paint stripper which illustrates the dangers of the drug. Medically throughout the world it has been used as an anaesthetic to treat various sleep disorders and to treat alcohol and opiate withdrawal. He said that GHB acts on the GABA receptors of the brain and as a central nervous system depressant will depress the brain’s activity, linked again to inhibition, similar to alcohol. There are important differences however according to Dr. Gojer. Only a certain amount of alcohol is absorbed by the stomach every hour whereas according to Dr. Gojer, GHB is rapidly absorbed and enters the brain and so people experience the effects of GHB very quickly. According to Dr. Gojer, GHB is out of one’s system in between two to four hours; however, he also testified that Mr. McCaw would be coming off the GHB within half an hour of consumption. Depending on the accuracy of these statements that would mean that on Mr. McCaw’s evidence since the intercourse took place about two hours after he last consumed GHB he would be feeling no effect from it or at least a reduced effect.

[249] Dr. Gojer testified that you get a quick euphoric effect from GHB and unlike alcohol it has some opiate-like activities so there is a different kind of euphoria than with alcohol. Its primary characteristic however is similar to alcohol. It affects the central nervous system and it could affect fine motor skills depending on the dose. Dr. Gojer said that if GHB is combined with alcohol the effect is going to be significantly much more intoxication-one drug “potentiates” the effect of the other and depending on the quantity taken a person might be in a severe state of intoxication. By “potentiate” Dr. Gojer explained that taking the two drugs together has an added effect, more than adding the effect of the two drugs together.

[250] Dr. Gojer testified that the higher the dose of the GHB, the more likely motor skills are impaired and the less aware a person is of their surroundings and the more likely the person will have impaired judgment and impaired responses to external stimuli. The person would eventually pass out into a coma. Dr. Gojer opined that a “dissociative state” can apply when a person consumes a massive amount of GHB and result in the person being so confused that they engage in conduct that they have no awareness that they are engaging in. The person may be carrying out certain behaviours in a “rote-like fashion”. Dr. Gojer testified that GHB can cause a person to go into a deep state of sleep and they can rise out of sleep quickly, which can put the person into a state where there may be automatic behaviours.

[251] To stay current in this area Dr. Gojer testified that he reads, is in constant communication with lawyers, attends conferences, assists colleagues and he speaks on the topic. I will come back to what Dr. Gojer meant by a “dissociative state”.

[252] Dr. Gojer testified that marijuana also has a central nervous system depressive action. When taken with alcohol and GHB it can potentiate the depressing effect of these drugs.

[253] Dr. Gojer testified that an alcoholic blackout is triggered by drinking alcohol and is a form of anterograde amnesia; namely an inability to remember things on an ongoing basis while being intoxicated with alcohol. According to Dr. Gojer, people can have blackouts with small quantities of alcohol although blackouts are more likely to occur with large quantities of alcohol. He also said that there are “greyouts” where the person has a partial loss of memory. Dr. Gojer admitted that they are defined as complete or fragmentary loss of memory for significant events that occurred during a drinking episode.

[254] The presence of a blackout relates only to the absence of memory. Dr. Gojer testified that a person in a blackout can carry on conversations and engage in other complex tasks that require higher cognitive function without memory of them. Short-term memory is selectively impaired while other cognitive and motor skills are unaffected or only minimally affected. Blackout patients are not “fall down drunk” although he said that people who are severely intoxicated are falling down. He agreed that there is no objective scientific or empirical method to verify the presence of an alcoholic blackout while it is occurring or to confirm its presence retrospectively. There is no test and the diagnosis of a blackout is completely dependent on the absence of memory for a certain period of time.

[255] Dr. Gojer testified that it is “so well-established” that blackouts can occur even with low intoxication and said that this was his clinical experience with his patients who self-report. They could be in an alcoholic blackout and still be able to make decisions between right and wrong, choices and perform complex bodily functions and engage in fine motor skills and higher executive function and yet when they wake up they have no idea what happened. He produced an article called “The Association of Alcohol-Induced Blackouts and Greyouts to Blood Alcohol Concentrations” by Dr. Perry and others. This article is a compilation of self-report questionnaires from people stopped for drinking and driving about how much they had to drink. The conclusion was that people with no memory loss had a BAC of 181 milligrams (mg”) in 100 millilitres (“ml”) of blood, which is twice the legal limit) or less and people with memory loss had a BAC of 279 or higher. The article goes on to state however that alcoholic blackouts have been reported to occur at BACs below this threshold. Dr. Gojer testified that according to a graph in this article that I was not able to decipher, that blackouts are occurring with BAC levels as low as 80 mg in 100 ml or at least less than 100.

[256] In cross-examination Ms. Garcia put to Dr. Gojer various portions of the Pressman Article. This article is sets out the results of what the author’s described in their Abstract as “an evidence-based analysis of published scientific studies” to determine whether “alcohol blackout” meets the legal reliability standards. To that end the authors review a total of 26 empirical studies including nine in which an alcohol blackout was induced and directly observed.

[257] Ms. Garcia put p. 939 of the Pressman Article to Dr. Gojer where Dr. Pressman states that alcoholic blackouts have been reported to occur most often at BAC levels above 250, that this is not a firm cutoff point and in the studies Dr. Pressman reviewed, blackouts have occurred at BACs as low as 140. She pointed out to Dr. Gojer that this is at odds with his evidence but he maintained his position.

[258] Ms. Garcia took Dr. Gojer to the conclusion of the Abstract portion of the Pressman Article where the authors state that while in an alcoholic blackout, “only short-term memory is impaired and other cognitive functions - planning, attention and social skills – are not impaired.” She also took him to p. 935 and following of the article where the studies that were reviewed are summarized including one from Goodwin who found that:

… during a blackout a person would be able to recite the Ten Commandments and know the consequences of robbing a bank. It was simply that he would not remember these things 30 min later or the next day. He knew right from wrong at the time of the act [author’s italics] and this appears to be the crucial factor where the law is concerned.

[259] Dr. Gojer would not agree that a person in an alcoholic blackout will know that committing a crime is wrong. He referred to the conclusion of the article that there is no objective scientific method which would verify the presence of an alcohol blackout while it is occurring or to confirm its presence retrospectively. That is true but was not a responsive answer. It does highlight however that much depends on the veracity of the report of the person who is being interviewed.

[260] Ms. Garcia also took Dr. Gojer to p. 933 where Dr. Pressman referred to A. J. Cunnien who noted that amnesia “does not infer defects of attention, awareness or consciousness during the drunken episode itself” [emphasis added]. She then put to Dr. Gojer that there is no evidence to suggest that cognition is severely disturbed during a blackout. Again Dr. Gojer would not agree and testified that there was no doubt in his mind that when you have an alcohol blackout with high levels of intoxication, there will be other features of cognitive impairments. When asked what evidence he had to support this Dr. Gojer testified that he did not want to go through this again but that it is a well-accepted fact that at high levels of alcohol intoxication issues like specific intent is negated. That was not a responsive answer to the question but in any event, sexual assault is a general intent offence.

[261] Ms. Garcia also took Dr. Gojer to an article written by Kim van Oorsouw and others which is referred to in the Pressman Article called “Alcoholic Blackout for Criminally Relevant Behaviour”. Dr. Gojer agreed with Ms. Garcia that alcohol and GHB both depress the central nervous system and that if drawing an analogy they pull the lights down in the room simultaneously. Dr. Gojer also agreed with the statement in this article at p. 365, that because of this “it is highly unlikely that a person can experience a blackout during complex behaviour such as robbery, murder, or rape” but he would not agree that this is accurate in the case of severe intoxication. In support of this he relied on cases in the courts where an extremely intoxicated defendant has committed a very heinous offence such as homicide. When challenged that he was improperly relying on case law, Dr. Gojer said that he was also talking about his own experience as a psychiatrist but then added that he was not talking about when the person was in a state of blackout. I found this qualification confusing. In any event Dr. Gojer insisted that severely intoxicated people are capable of complex behaviours because he has seen the toxicology BAC reports in cases where they have been charged with a heinous crime and he testified that he looks at the entire clinical picture.

[262] Dr. Gojer agreed that in a state of blackout one could make conscious decisions during that time but he opined that it is highly unlikely that a person who is severely intoxicated could make complex decisions or even be capable of making any decisions. He then agreed however, that such a person could make decisions albeit might be making very bad decisions.

[263] Turning to the subject of automatism, Dr. Gojer testified that psychiatrists do not use the term automatism as it is a legal concept but they do try to approximate medical knowledge to help the courts understand what automatisms are. According to Dr. Gojer automatisms are understood to be behaviours that are automatic meaning that they occur with no thought or no cognition involved with the behaviour i.e. action without any conscious awareness or control of the mind. He admitted that automatism is extremely rare as a concept.

[264] Although some refer to automatism as a person being unconscious and yet having modes of behaviours, Dr. Gojer testified that from a medical perspective unconsciousness is when one is lying horizontal and relatively unresponsive to stimuli. He opined that there are different degrees of conscious awareness; sleep is a state of unconsciousness from which one can be easily aroused and the extreme end is a coma. Dr. Gojer testified that these levels of conscious awareness can be impacted on by a variety of factors that could be drugs, alcohol, head injuries, seizures and psychiatric illnesses.

[265] Dr. Gojer testified that “dissociation” is typically the term used when the person’s mental faculties are disassociated or disconnected from their actions and that psychiatrists use this term to explain unconsciousness where individuals without any brain disorder, present with automatic-like behaviors and are seemingly unaware of their surroundings or their actions.

[266] According to Dr. Gojer there is a relationship between blackouts and automatic behaviour. He explained that a person may have consumed as little as one or two drinks and therefore may not experience the full extent of alcohol intoxication like slurred speech and motor incoordination but might still not remember what happened at a point in time. In that case the person could be consciously aware at that moment when they are interacting with people and understand what they are doing and even make valid decisions and be aware at the moment of the implications of their actions. However, the higher the quantity of alcohol consumed in an alcohol blackout at that level, a person’s ability to process information is also impaired and the higher the quantity of alcohol consumed, the greater the degree of intoxication, and the alcohol blackout will start merging very close to that state where the person is almost becoming comatose. There are then two problems; the alcohol blackout and impairment of cognition, information processing and understanding perception and planning.

[267] When asked by Mr. Frost if someone was capable of acting in an automatistic state after having consumed a very large amount of alcohol, Dr. Gojer testified that it is possible and that the more severe the level of intoxication the less aware the person is until the person gets to the point of passing out.

[268] Dr. Gojer was asked various questions by Mr. Frost assuming a hypothetical person but of course that person was Mr. McCaw and was based on his trial evidence which is how I will refer to the evidence. Dr. Gojer was asked to assume that Mr. McCaw was severely intoxicated; he had consumed six to eight doses of GHB between approximately 10 p.m. and 4 a.m., his BAC from alcohol between 60 and 70 and he had consumed marijuana through the night. Mr. Frost then read to Dr. Gojer Mr. McCaw’s evidence from his evidence in chief at trial when Mr. McCaw explained his thoughts when he came to and realized that he had engaged in intercourse with Ms. K.B.. Stopping there Dr. Gojer suggested that the Court has to consider three questions:

(a) whether Mr. McCaw had a blackout and did not remember everything to that point in which case how did he become aware of his actions at the time he was about to ejaculate;

(b) since there seemed to be complex behaviours leading up to that point, were those behaviours indicative of a person in some kind of dissociative state becoming more aware when there was a conversation or he was about to have an orgasm since the central nervous system arousal levels have become higher; and

(c) is he lying about everything?

[269] Mr. McCaw told Dr. Gojer that “he vaguely recalls having sex and about to have an orgasm.” Dr. Gojer agreed that this is like having a dream about having sex and that Mr. McCaw was beginning to become aware of his presence and that he was having sex with this woman. In a blackout according to Dr. Gojer, there is a definite point when you start to remember everything. That is why in his opinion Mr. McCaw seemed to be emerging out of a dissociated state. Dr. Gojer denied that Mr. McCaw’s evidence that he was coming out of a dream, having a vague recollection of having sex and then being at the point of orgasm was at odds with this as it was a very short period of time. He said that he saw this as a sudden emergence out of that state.

[270] Mr. Frost also read to Dr. Gojer the evidence of Mr. S.L.’s examination in chief when he testified about his interaction and observations of Mr. McCaw when he came downstairs the first time after he was told by Ms. K.B. that she had been sexually assaulted. Dr. Gojer testified that there are several interpretations that could give rise to these observations. One was that Mr. McCaw was recovering from GHB because the drug comes out of the system fairly quickly. He also testified that the fact Mr. McCaw was presenting as a caricature of himself is reflective of a severe intoxicated state. He said it could also be that Mr. McCaw was shocked at his own behaviour. Finally he queried; is it all staged?

[271] Mr. Frost then read to Dr. Gojer Mr. S.L.’s evidence about what he observed when he came down the second time. Dr. Gojer testified that either Mr. McCaw was so callous about the whole event that he just went back to sleep or he was lapsing back into a state of severe intoxication and fell asleep after such a serious event had occurred and that he might be in some dissociated state. Dr. Gojer said it was important that Mr. McCaw was sitting up and not lying down and that the fact he was unresponsive with scissors on his chest told him that he was more likely in an extreme intoxicated state. In cross-examination Dr. Gojer admitted that the most likely explanation was that Mr. McCaw simply fell asleep because of severe intoxication. He agreed that Mr. McCaw might also have been faking this to avoid confrontation with Mr. S.L.

[272] Mr. Frost asked Dr. Gojer if he was willing to opine on the likelihood at the time of the offence that Mr. McCaw was in a “state of automatic-like behaviour”. He answered that in his report (which I did not have) that he was careful not to comment on that because he felt that there were so many variables and that one had to believe the complainant and aspects of Mr. McCaw’s evidence. However he said that it:

… points in the direction of a person being severely intoxicated with both alcohol and GHB. If you combine that there is a history of him also having similar kinds of intoxicated states with GHB, and the clinical literature is in keeping with that kind of phenomena that’s been reported. And the way he describes coming to, and if you combine it with what Mr. S.L. says when he observes him, then you note that he is falling asleep with the scissors on his chest, everything points to a person who was really severely intoxicated, and if you combine the GHB with that is it more likely than not? I would say yes, that GHB also was a contributory factor to the behaviour at the time in question.

[273] Dr. Gojer testified that the fact Mr. McCaw was in a state of severe intoxication was a very important assumption because blackouts in that state are going to be associated with significant cognitive impairments such as judgment; not just memory. One might be confused and lack awareness of who they are, where they are and what time of day it is; what Dr. Gojer called the hallmarks of a dissociated state.

[274] In cross-examination Dr. Gojer was taken to the Diagnostic and Statistical Manual (“DSM”) definition of a dissociated state. He agreed that it is different than a decreased level of consciousness and testified that since he did not diagnose Mr. McCaw with any dissociative disorder that for Mr. McCaw he was talking about a decreased level of consciousness. He maintained however that although Mr. McCaw did not have a disorder, the process was one of dissociation. He testified that dissociation as a disorder is very different from dissociation as a process. He did not provide any support for this statement although I note that he referred to a dissociative state which, as I will come to, is what the cases in this area refer to.

[275] Dr. Gojer was asked about the Sunnybrook Records from Mr. McCaw’s attendance in November 2014 and what was reported to the paramedics about what Mr. McCaw consumed in terms of GHB and whiskey and how he reacted to it. Dr. Gojer stated that Mr. McCaw was not unconscious because he was sitting but he was not responding. He opined that he was in a dissociated or stuporous state. At 7:48 a.m. he was “alert to person only” which Dr. Gojer said was evidence of confusion. He went on to refer to the report of the emergency physician, Dr. Bhandari and testified that it added weight to how Mr. McCaw responds to taking three tablets of GHB. It put him into a semi-stuporous state where he even stopped breathing and he could have died. According to Dr. Gojer this is important information that “gives you some clues how he reacts to the three tablets of the drug, and this is information that comes much before”. In his opinion it gives you a baseline of how this person reacts to GHB.

[276] Mr. Frost also read to Dr. Gojer some of Mr. J.B.’s evidence as to the quantity of GHB that Mr. McCaw consumed and how he reacted in November 2014. To that evidence Dr. Gojer testified that it was more or less consistent with the medical records that Mr. McCaw was in a semi-stuporous state or a dissociated state where he was not asleep but not responding to commands and if he did it was only to very basic commands like walking. Dr. Gojer saw no evidence that Mr. McCaw was faking his reaction at the time. When Mr. Frost referred to the evidence that Mr. McCaw was swinging from the door, Dr. Gojer opined that these were automatic behaviours. He also stated that if Mr. J.B.’s evidence is accepted, it is another independent source that strengthened his opinion.

[277] At the outset of his cross-examination Dr. Gojer admitted that when psychiatrists speak of automatic movements that are outside the control of the patient they are talking about simple, repetitive purposeless movements; movements that are out of context or not responsive and they might be primitive or trancelike. Later in cross-examination however, when Ms. Garcia put to Dr. Gojer that she had already established with him that automatic behaviours are not purposeful he answered: “why not?” He then suggested that you can get automatic behaviours even in sleepwalking and those automatic behaviours are extremely purposeful behaviours. Again, this was not helpful as there is not dispute that Mr. McCaw was not sleepwalking.

[278] When Ms. Garcia put to Dr. Gojer that there is no empirical, peer-reviewed, scientific study that supports his thesis that a person can perform complex motor functions while not being conscious of them, he said he did not have a thesis but that his opinion that these “complex behaviours are well reported in the literature and people can conduct very complex maneuvers in a state of automatism.” It then became apparent that he was referring to sleep research and had not limited his answer to a case where a person is intoxicated by drugs and alcohol. Dr. Gojer then admitted that there is no empirical, peer-reviewed, scientific study that supports his opinion that a person intoxicated by drugs can perform complex motor functions while not being conscious or aware of them. Dr. Gojer conceded that there is no study that speaks to GHB causing the characteristics of the legal test for automatism although he said that some papers talk about GHB having a dissociative effect. He admitted that the literature is all anecdotal.

[279] When asked by Ms. Garcia what support Dr. Gojer had for his opinion that a person can engage in complex fine motor movements without conscious awareness of his decision-making he referred to the Pressman Article at p. 933 where an article by Sweeney called “The Alcohol Blackout” published in 2003 is quoted from. Dr. Gojer did not have a copy of the Sweeney article. He testified that Sweeney is a doctor; a psychiatrist and admitted that Dr. Sweeney did not conduct any empirical studies to come to his conclusions.

[280] In the quote Dr. Sweeney stated that a person in a blackout is in an unconscious state, he has no idea what he is doing and he is out of control even though he is able to walk, talk, drive etc. According to Dr. Gojer this was as a result of the consumption of alcohol.

[281] Dr. Gojer also relied on an article by Dr. Merikangas; also referred to in the Pressman Article at p. 933, who Dr. Gojer testified said the same thing. In the Pressman Article it is stated that Merikangas “seems to conclude that alcohol blackouts are automatisms – absences of mind – that should be recognized as exculpatory unless they are feigned” Dr. Gojer admitted that Dr. Merikangas did not do his own study but wrote a commentary in 2004 called “Alcoholic Blackout: Does It Remove Mens Rea?” commenting on the writings of others including the article by van Oorsouw.

[282] When Ms. Garcia criticized Dr. Gojer about the fact that these are all anecdotal accounts he agreed that they all are but pointed out that it would be unethical to do studies and so you have to look at anecdotal reports and that you have to look at how the courts have ruled. He then pointed out that Dr. Pressman had just reviewed the literature and he referred to an article that Ms. Garcia provided to Mr. Frost called “The Medicolegal Aspects of Automatism” written by Dr. Donald Blair, a psychiatrist, in 1977, who reviewed English case law that dealt with automatism.

[283] Dr. Gojer testified that it is difficult to distinguish between a person who has volition over what they are doing in the moment and forgetting about it afterwards versus having no volition of what they were doing. He said that a person in a mild or advanced state of intoxication who reports memory problems is more likely reporting an alcohol blackout. A person in extreme intoxication will have an alcohol blackout and the likelihood of the person being in a dissociated state becomes high. Dr. Gojer testified that in anecdotal reports people talk about consuming alcohol and being unaware of their actions at the time in different contexts which causes confusion about what automatism is. He said that with GHB dissociated reactions have been reported. In both cases the person is still able to perform certain functions. He explained that in both cases there will be memory loss but the awareness of one’s actions at the time will be unimpaired in low levels of intoxication but will be impaired at high levels of intoxication. Adding GHB into the mix you have the potential of dissociative reactions and “the texts say is that the combination of GHB with alcohol also leads to substantial intoxication.” Dr. Gojer was referring to the American Society of Addiction Medicine text but did not have it with him or provide a copy of what portion of that text he was referring to.

[284] Dr. Gojer agreed that the easiest way to malinger is to say that you don’t remember. Ms. Garcia took him to an article written by Dr. Dominique Bourget in 2007 that Dr. Gojer had provided to her, where at p. 474 the author stated that an early study had reported that 20% of offenders claiming amnesia were fabricating the memory loss and that it has been suggested that the rate of malingering is higher. Dr. Gojer said that he had no reason to disagree with this but he pointed out that there could also be as many as 80% who were not malingering. He denied wanting to put a positive spin on this although of course this is what he did by his answer.

[285] Dr. Gojer agreed that objective, quantitative assessment tools are helpful in assessing whether a patient is malingering and that in doing so this could “sometimes” assess the truthfulness of the patient. However, he said that he did not feel it relevant at the time to ask for psychological testing to assess the veracity of Mr. McCaw’s self-report. In particular he did not think it was appropriate or relevant to do any personality tests or any tests of memory malingering as in his opinion those tests would not tell you if Mr. McCaw was feigning memory loss at the time of the incident. Ms. Garcia suggested to Dr. Gojer that a “gold-standard report” would have included various tests that she put to him in evidence including a drug test but Dr. Gojer disagreed. Ms. Garcia put to Dr. Gojer the Bourget article at p. 477 which describes various tests that can be used and Dr. Gojer admitted that he did not do any of them.

[286] Ms. Garcia questioned Dr. Gojer about the fact that he did not ask Mr. McCaw about inconsistencies between what he said that he had to drink on the booking video as compared to what he told Dr. Gojer. Dr. Gojer was also unaware that Mr. McCaw gave Dr. Rosenbloom a different time as to when he started drinking as compared to what Mr. McCaw told him. She also submitted that Dr. Gojer included information in his report that was irrelevant and tended to show Mr. McCaw as the victim and positive remarks about his character. I did not have the report and so it is difficult to judge if Dr. Gojer crossed the line to that of an advocate.

[287] In considering the credibility of Dr. Gojer, I had some concerns as he was not always responsive to Ms. Garcia’s questions and on occasion he seemed to give evidence that was unresponsive to a question that favoured the defence. Some of his evidence was internally inconsistent. I would not conclude however that he was biased although for reasons I will come to I would not have accepted his opinions had I found that Mr. McCaw had consumed the GHB that he testified to.

The Crown’s Experts

Evidence of Elizabeth Hird

[288] Ms. Hird is employed as a toxicologist with the Centre of Forensics Scientists. She has a Bachelor of Science, Honours degree in Forensic Science earned in the UK. As a forensic toxicologist in the UK, Ms. Hird received training in both pharmacology and toxicology in a medical/legal context, which covered a number of drug classifications including GHB as well as drug facilitated sexual assaults which included GHB, which she particularly focused on. In addition she has done some testing of the potency of GHB in the course of her work. Ms. Hird also completed training with respect to alcohol and the pharmacology of alcohol – namely its effects on the body. Ms. Hird has never had any patients or observed people who have used GHB but she has with respect to alcohol. However, she testified that she would assess anecdotal reports from individuals who have taken alcohol and/or GHB with “extreme caution”. Ms. Hird has also trained in the pharmacology of marijuana, including the effects on the body, which is covered as one of the drugs that is prevalent in forensic toxicology. She has been qualified as an expert witness and testified mostly in cases involving alcohol but has testified as an expert with respect to GHB and marijuana before. There have never been any issues with respect to her qualifications. Mr. Frost did not object to Ms. Hird’s qualifications and I ruled that she was qualified to give expert opinion evidence in the area of toxicology.

[289] Ms. Hird agreed with Dr. Gojer that both alcohol and GHB are central nervous system depressants. Based on empirical scientific experiments on people who have been dosed with alcohol, it has been determined that alcohol is absorbed fairly rapidly, within minutes, into the bloodstream. Alcohol is not selective on how it acts on the brain and it affects two things; 1) psychomotor function – namely the ability of the brain to process information, think and make decisions and 2) the physiological part of the brain which controls respiration, heart rate, movement and the ability to coordinate your arms and legs, affecting the ability to perform tasks such as walking and standing up; with the individual is eventually falling asleep and becoming unconscious. In this respect alcohol consumption can cause a flushed face and glassy eyes; effects that can be visually observed.

[290] According to Ms. Hird, there is a limited use for GHB medically to treat patients who suffer from sleep disorders. It is also used illicitly for its relaxation and euphoric effects that one can achieve with small doses of the drug. Ms. Hird testified that GHB is also a drug that depresses the central nervous system and so it can be classified in a similar way to alcohol. Accordingly, the effect on someone having taken GHB, depending on the dosage, is fairly similar to someone who consumed alcohol, as already described. Like alcohol, a person who consumes GHB will feel more sociable; it may disinhibit the person, or reduce the ability of the brain to process information similarly to alcohol; and physiologically, a person may feel sleepy or drowsy depending on the dose.

[291] Ms. Hird testified that the evidence of Dr. Gojer that GHB is absorbed very rapidly and is eliminated rapidly based on its half-life is inaccurate. In her opinion, unlike alcohol, it takes a certain amount of time for GHB to be absorbed into the bloodstream. An individual who has taken a dose of this drug will feel the onset of effects within about 15 minutes or perhaps up to 30 minutes of ingesting the drug. The actual peak concentration in the bloodstream will lag, being achieved about 30 to 45 minutes after consumption. Depending on the dosage and how often you take the GHB and the potency of the drug, Ms. Hird testified that she expects that one would still be feeling its effects between two to six hours later depending on the person and the dose. She based this opinion on analytical tests she had done in the laboratory in the past.

[292] Because alcohol and GHB are both central nervous system depressants and act on the brain and the body in a similar fashion, in Ms. Hird’s opinion they have an “additive effect” if taken at the same time or within an hour or two of the other. In other words, the increase in intoxication will be more than if each drug was taken separately. This evidence is consistent with Dr. Gojer’s evidence of “potentiation”. The potential for being sleepy and drowsy will be increased and the ability of the brain to process information will be decreased. Since alcohol and GHB are not selective and act on many parts of the brain, in Ms. Hird’s opinion they will both impair memory and also depress the brain’s psychomotor function and at the same time depress the physiological part of the brain. In Ms. Hird’s opinion, the psychomotor function cannot be considered separately from physiological function because if there is impairment of one, you have impairment of the other.

[293] Based on laboratory studies according to Ms. Hird, depending on the potency of the GHB, individuals take between one to two and a quarter grams of GHB, which equates to five to ten ml of liquid, in order to achieve the euphoric and relaxing intoxicating effects of GHB. A good representation of this would be a standard bottle cap; five ml. This is consistent with the evidence of Mr. C.A. and Mr. McCaw. Ms. Hird testified that the recipes that you see on the Internet to make illicit GHB are normally aiming to achieve the concentration of one gram per ml. Accordingly, five ml is five grams, but according to Ms. Hird, it’s not necessarily that potent and it could be anywhere between two to five grams, depending on the potency of the GHB. If a person takes that capful and is not experiencing the effects of relaxation and slight drowsiness, and “drunkenness”, in Ms. Hird’s opinion, that suggests the potency of the GHB the person took is not as high as you might want it to be, so then that person would take more to achieve that euphoric intoxicated state. So according to Ms. Hird, if a person takes a dose of GHB and can feel the effects as expected, then she would infer from that that the potency of that GHB was enough to cause those effects.

[294] Ms. Hird testified that memory loss following alcohol use has been reported in the scientific literature and it has been studied by dosing individuals with alcohol to see the effects that it has in this respect. The memory loss can be partial or it can be complete for a period of time. These effects are not predictable and cannot be related to a specific BAC or range of BACs. Furthermore, a person who suffered a memory loss from alcohol intoxication on one occasion may not experience it at a different time.

[295] Ms. Hird defined a blackout as a period of time where the individual doesn’t remember anything at all and this period of time can be several hours – up to even five to six hours, without a loss of unconsciousness. Although the individual has no recollection at all, when you question observers of that individual, even though they will look intoxicated, they are still able to function and carry out tasks and interact socially with other people. In Ms. Hird’s opinion, memory loss does not imply that the individual was unaware of the events occurring at the time. It is just that after the event they have no recollection of doing those actions or performing those actions.

[296] Ms. Hird testified that a number of situations have been studied in the literature and shown to make memory loss more likely to occur. This has been defined as an alcohol-induced blackout or an alcohol-induced greyout. The memory loss experience can be partial or complete periods of time lasting several hours. It occurs during the period of intoxication. The effects are not predictable so an individual who experiences memory loss from alcohol intoxication from one occasion may not experience it at a different time, and so it can’t be predicted when it will happen.

[297] In the opinion of Ms. Hird, a blackout is more likely to occur in individuals consuming a large quantity of alcohol over a short period of time of an hour or two, so the individual goes from zero to a high concentration of alcohol in the blood in a short period of time; known as “bolus” drinking. What is considered a large quantity depends on the individual. Ms. Hird testified that memory loss is usually associated with a BAC greater than 200 mg of alcohol in 100 ml of blood. She said that with alcohol, because there are empirical studies on individuals that have been performed, she puts her opinion behind the scientific weight of those studies, which the anecdotal information backs up.

[298] Alcohol induced greyouts are similar. In this case, the individual has partial recollection for a period of time of events and may remember flashes of information but they may not be able to put that information in a certain timeline or remember what happened before. Often people, who have experienced alcohol induced greyouts, when prompted, are able to recall things or if they are given additional information their recollection becomes clearer.

[299] According to Ms. Hird, GHB and memory loss is less documented in the literature. The effects of GHB have been studied but not with respect to memory. There are reports that look at self-reports of what people have experienced but there are no studies that have actually tested this that Ms. Hird has seen that are reported in the scientific literature. It is just anecdotal.

[300] Ms. Hird testified that marijuana also impacts memory. It is documented that when you smoke marijuana it impairs your short-term memory and you do not recall periods of time while you are under the influence of the drug. It is not a central nervous system depressant and according to Ms. Hird, how it affects the body is very complex. It has anti-anxiety properties but it doesn’t function as what you would call classical central nervous system depression.

[301] To calculate BAC, there is no dispute that you need to know the person’s weight, height and gender. You also need to know when they commenced drinking, the quantity and alcohol strengths of the beverage consumed, and there are a couple of assumptions to be made. Ms. Hird assumes the rate of elimination of alcohol from the blood ranges between 10 and 20 mgs of alcohol in 100 ml of blood per hour. The higher end of the range assumes a lower elimination rate. Ms. Hird testified that this range has been reviewed and is reported in the scientific literature as being forensically valid. It represents the vast majority of the population and that is why she uses it. Ms. Hird said that most people who metabolize alcohol as healthy individuals and metabolize it as expected are going to be around 18 mg in 100 ml of blood per hour.

[302] Although Ms. Hird heard Mr. McCaw`s evidence about how much he drank at the time, she was not able to give an elimination rate for him. Based on what she heard, however, she would put Mr. McCaw in the light to moderate drinker category. She would not define him as an alcoholic.

[303] Ms. Hird testified that she also uses standard beverages unless she is given a particular brand when calculating BAC. She said that although there are wines that are at 14% alcohol volume by volume (“alcohol volume”), this is the higher end of alcohol volume for wine. In her opinion, 12% alcohol volume is more reflective of the type of wine you buy from the LCBO. If you use 14% alcohol volume the wine is stronger and will increase the BAC a little. She used 5% volume for the beer. In Ms. Hird’s opinion these alcohol strengths are averages that are commonly used in medical literature.

[304] Ms. Hird does her BAC calculations from scratch. She did new BAC calculations after hearing the evidence of Dr. Rosenbloom. She assumed the drinking started at 4:30 p.m. and that one litre of wine at 12% alcohol volume was consumed. Ms. Hird included a bottle of Stella at 5% alcohol volume and three and a quarter tall cans of beer that were 473ml in size with an alcohol strength of 4.9% alcohol volume.

[305] Using the same elimination rate used by Dr. Rosenbloom of 17 mgs per a 100 ml, Ms. Hird calculated BAC as at 4:15 a.m. at 204 mgs of alcohol in 100 ml of blood. Using a range of elimination of ten to 25 mgs per 100 ml, Ms. Hird calculated a BAC ranging between 100 to 286 mgs of alcohol in 100 ml of blood. Assuming that the person weighed ten more pounds, it would lower the BAC but in Ms. Hird’s opinion, this wouldn’t significantly change the calculations.

[306] Ms. Hird testified that with the same assumptions and starting point, the BAC at 6:00 a.m., using Dr. Rosenbloom’s elimination rate of 17 mg per 100 ml of blood per hour would give a BAC of 174 mg in 100 ml and using a ten to 25 mg, the range would be 66 to 269 mg in 100 ml. She agreed that a BAC range of 66 to 269 is enormous. In one case, you can legally drive, and at the other end, you would be in jeopardy of not being conscious.

[307] Ms. Hird testified that assuming Mr. McCaw did not consume any alcohol within 15 minutes of having intercourse with Ms. K.B., the actual times he consumed the various alcoholic drinks that he testified to do not matter. The only time that matters is the time he started drinking.

[308] Ms. Hird testified that at a BAC of 100, in a light to moderate drinker you would expect to see signs of intoxication - they would be more sociable, more chatty, disinhibited, and depending on their tolerance they may have some difficulty with fine motor function. Adding GHB to this scenario in Ms. Hird’s opinion you would see a significant increase in central nervous system depression. She testified that six to eight doses of GHB would be enough to cause significant sedation, potentially putting the person to sleep and even becoming unconscious. That would even be with a low 110 BAC reading.

[309] If the BAC was as high as 286 mgs in a light to moderate drinker, in Ms. Hird’s opinion you would see severe intoxication including slurred speech, inability to coordinate arms and legs, impaired ability to process information, reduced awareness of what is going on around them and you would be beginning to see drowsiness and sleepiness. Adding the GHB to that in Ms. Hird’s opinion she would expect that person to be in a deep sleep if not unconscious. They might need medical attention.

[310] Even in the absence of alcohol, in Ms. Hird’s opinion, six to eight doses of GHB is a significant dose and is enough that she would expect to see someone entering into sleep, potentially unconsciousness, because of the volume of GHB consumed assuming that the GHB had a potency to achieve the desired effect in the first place.

[311] In Ms. Hird’s report of August 30, 2018, she opined that in a light to moderate drinker, a BAC of between 170 and 340 mg/100 ml would be expected to produce significant intoxication. At the lower end of the range there would be impairment of balance and coordination such that an individual may not be able to stand or walk. The individual could also be drowsy or asleep and there could also be slurred speech, nausea and vomiting. In the opinion of Ms. Hird, as the BAC increases the effects of alcohol will be more significant, resulting in unconsciousness/coma or as the BAC approaches/exceeds 350 mg/100 ml, death.

[312] In a light to moderate drinker in the opinion of Ms. Hird, a BAC of 286 mg/100 ml is going to cause severe intoxication – namely slurred speech, inability to coordinate arms and legs, and the person wouldn’t be able to walk in a straight line. Their ability to process information would be impaired, and they would have reduced awareness of what was going on around them. At this concentration, this person would begin to experience drowsiness and sleepiness. Adding the GHB would have a cumulative effect, and at these high concentrations Ms. Hird testified that she would expect someone to be in a deep sleep, if not unconscious. The person might require medical assistance because this person stopped breathing.

[313] Ms. Hird testified that with alcohol there are empirical studies and actual studies on individuals that have been performed, and so she puts her opinion behind the scientific weight of those studies which the anecdotal information backs up.

[314] In the opinion of Ms. Hird, a person who had consumed the amount of alcohol and GHB that Mr. McCaw testified to, would not be able to physically get up, remove all of their clothing, open buttons and zippers, walk across a room, identify a person as female, undress that woman, undo laces, buttons, zippers, and pull clothing off that woman’s body making her naked and putting her physically in a position on her back, even though she was a deadweight and was not cooperating, achieve an erection and have vaginal intercourse with that woman to the point of completion. Ms. Hird testified that the reason for this opinion is that there would be severe central nervous system depression exerted on the individual from the consumption of alcohol and GHB, which would reduce that person’s ability to walk, to be able to function and to be able to access fine motor skills. Ms. Hird admitted that a person’s ability to perform all of these tasks is dependent on the individual and their ability to do so when they are sober, but in her opinion, when you add alcohol and drugs into the equation there is going to be a reduced capacity to perform these things. Ms. Hird admitted that much depends on the potency of the GHB and the elimination rate used.

[315] Ms. Hird did a BAC calculation for Mr. McCaw based on the hospital records from November 2014. At that time, he was 121 pounds. She assumed one-half bottle of whiskey - 375 ml, at 40% alcohol volume. She assumed the drinking started approximately at 11 p.m. and she calculated the projected BAC at 6 a.m. Using the elimination rate of 17 mg per 100 ml of blood per hour that Dr. Rosenbloom used, it gave her a BAC of 212 mg of alcohol in 100ml of blood, and using a range of between 10 to 25 mg in 100 ml per hour for an elimination rate, she calculated a BAC of between 156 to 261 mg in 100 ml. In 2014, the BAC was a little higher than it would be in 2015, but assuming a similar potency of GHB on both occasions, the GHB in 2014 was a smaller dose. Given they both have additive effects, broadly speaking, in Ms. Hird’s opinion, the impact would be comparable.

[316] Ms. Hird defined “automatism” as behaviour or actions performed by an individual over which they have no conscious control, intention, or awareness. The behaviour is often repetitive and of low complexity; however, occasionally it may be complex, coordinated and apparently purposeful and directed though lacking in judgment.

[317] Ms. Hird testified that there is no scientific evidence that GHB can attribute to automatism. Automatism has been documented in cases following high dosage of potent prescription and recreational drugs that have sedative and/or psychoactive effects such as barbiturates, benzodiazepines and drugs prescribed for insomnia like zolpidem. These drugs are pharmaceutical preparations that have been formulated to act on a very specific part of the brain. For example, zolpidem works on one of the GABA receptors whereas GHB doesn’t bind as tightly on the same receptor and it interacts with other receptors. This is different than alcohol and, to a certain extent, GHB, as alcohol and GHB are not selective in that they work on lots of different parts of the brain. As much as they reduce alertness and the brain’s ability to process information, they are going to reduce the physical ability of an individual to function at the same time because GHB and alcohol depress the whole central nervous system simultaneously.

[318] In Ms. Hird’s opinion, based on her research of the scientific literature and empirical studies, there is no scientific evidence that automatism is directly caused by alcohol alone in a healthy individual no matter how severe the intoxication. That is due to the fact that alcohol is not selective on what parts of the brain it is working on. It depresses everything; so if someone is significantly intoxicated, in addition to significant disruption in comprehension and inability to process information, there is going to be as well a marked deterioration of physical abilities and consciousness. By that Ms. Hird means the person will be asleep, i.e. unconscious, and not responding to stimuli. The combined use of alcohol and GHB on the cognitive processes will have an additive effect – more pronounced sedation. In Ms. Hird’s opinion, it very unlikely that a person with significant central nervous system depression would be able to perform the hypothetical acts that Ms. Garcia described earlier i.e. the actions of Mr. McCaw.

[319] In cross-examination, Ms. Hird admitted that there are no studies on the effect of GHB as it relates to automatism. She also admitted that for something to be scientifically proven as causing automatistic behaviour there would have to be experimental studies performed such that you would have individuals consume a certain drug and they would have to be observed in that automatistic state, and then questions would be asked and you would come to conclusions based on that. She also agreed that to dose healthy individuals with particular potent prescription medication is something that is difficult to get approval to do. Ms. Hird agreed that there has to be a high degree of certainty that automatistic behaviour was displayed, which is a much higher standard than saying that it is more likely than not.

[320] Ms. Hird testified that she would not expect a person to be able to stand and perform certain actions while under severe intoxication. It would, however, depend on the individual. It would depend on their tolerance to alcohol and/or GHB. She testified that it is fairly easy to gain a certain amount of tolerance to alcohol, but for GHB you have to have been using it habitually on a daily basis. She admitted that if a person has done an activity a million times before, potentially they could do that activity under a severe state of intoxication. It would depend on how complex the task is. She admitted that the more repetition, an individual might be able to perform a more complex activity that is not extremely complicated while extremely intoxicated.

[321] I found Ms. Hird to be a fair and credible. She was direct and candid in answering all questions. Within the area of her expertise I found her evidence to be reliable for reasons I will explain. I have no reason not to accept all of her testimony nor did Mr. Frost submit otherwise.

Evidence of Dr. Scott Woodside

[322] Mr. Frost consented to Dr. Woodside being qualified as a forensic psychiatrist to comment on one specific area of Dr. Gojer’s evidence. Dr. Woodside is currently a staff Psychiatrist in the General Forensic Unit and the Clinical Head of the Sexual Behaviours Clinic at the Centre for Addiction & Mental Health (“CAMH”). He is also responsible for 12 inpatient rehabilitation beds under the Ontario Review Board, and he works in the Psycho-legal clinic through CAMH. He has testified in cases such as this where the defence of automatism has been raised.

[323] Dr. Woodside testified, as did Dr. Gojer, that much depends on whether or not one accepts Mr. McCaw’s version of events, and in particular, not just the amount of drugs and alcohol that he consumed, but also the effect of that on him. Specifically in this case, the veracity of Mr. McCaw’s report that he had little to no memory of his actions up until the time that he alleges he heard Ms. K.B. say “don’t come inside me”. In Dr. Woodside’s experience individuals facing criminal charges claiming amnesia for events at the material time is incredibly common. He agreed with Dr. Gojer that this is the simplest form of malingering; to say one does not remember. For that reason Dr. Woodside testified that any forensic psychiatrist doing an assessment needs to approach the assessment with some degree of skepticism and be aware of the significant potential for the individual to malinger or to claim things that are not actually representative of their state of mind at the time.

[324] Dr. Woodside agreed with Dr. Gojer that all testing is retrospective in nature and that virtually all testing tells you about a person’s present state of mind. Where Dr. Woodside differed from Dr. Gojer is that in his opinion, in the case of memory and amnesia claims, there are specialized tests that assist in determining whether or not an individual is forthright in his/her description of memory difficulties because these tests provide valuable information about the person’s willingness to disclose either problems or functioning memory. Basically, at the outset, the tests are used as a bit of a “red flag” for whether or not a person’s self-report should be accepted. If someone demonstrates significant concern around malingered memory or around how they are presenting themselves that the psychiatrist can identify objectively in testing, that gives the psychiatrist a note of caution and makes them more cautious about asserting that perhaps someone has reached a particular threshold. Although he conceded that credibility lies with the trier of fact, according to Dr. Woodside, in offering a psychiatric opinion about whether something is more likely than not to be the most likely explanation for someone’s behaviour at the time, it is helpful at the outset, to have objective information about whether or not that individual appears to be providing straightforward information during the psychiatrist’s assessment of that individual.

[325] Dr. Woodside then went on to describe the multiple forms of testing that are used for claims of amnesia. The common tests include the Test of Memory Malingering (“TOMM”), which is the most commonly used of all the tests. This test takes advantage of the fact that some areas of memory remain intact, even in individuals who are very significantly cognitively impaired. He said that even patients with dementia score 47 or 48 out of 50 on the TOMM. Accordingly, if someone scores much lower, this is an extremely high index of suspicion for malingering or at a minimum exaggeration of difficulties with memory.

[326] Dr. Woodside testified that in a case like this there are other tests used such the Word Memory Test and the Wechsler Memory Scale. He also testified that in a case such as this, he would also do personality testing. These tests would provide information regarding personality function and personality pathology, along with more limited information regarding the presence or absence of mental illnesses. These personality tests test a person’s testing-taking attitude and the information provided helps the psychiatrist decide whether to accept the person’s self-report at face value or whether the person has attempted to shape his or her impression of them in any significant way. They can provide a measure of what is commonly referred to as a “fake-good profile” where the person makes claims that they are more virtuous than most people or alternatively, they have engaged in a “fake-bad profile” where they are exaggerating problems. Depending on how a person performs on these tests, a psychiatrist may consider the individual’s self-report as one where caution should be exercised in accepting it at face value,

[327] Finally Dr. Woodside would do drug testing, because if the person advises that they haven’t used drugs or alcohol in months but test positive, that might also be a clue that the person’s self-report is unreliable or inaccurate, or that one should exercise caution.

[328] In Dr. Woodside’s opinion, where this type of testing is not done, you are deprived of objective information about the individual’s approach to the assessment. In his opinion, psychiatrists are not great at detecting malingering of any kind. They use objective testing precisely for that reason. It moves them away from simply their subjective impression of the individual to objective data regarding their presentation at the time of the assessment. If Mr. McCaw had been given these tests and if the testing showed that there was no indication of exaggeration or malingering on the testing, then Dr. Woodside would have had more confidence that what Mr. McCaw told him was straight forward.

[329] As for Dr. Gojer’s reasons for not doing any testing of Mr. McCaw, because in his opinion it wasn’t indicated, Dr. Woodside strongly disagreed. He couldn’t imagine why one wouldn’t do the testing to assist one in knowing whether the person is being straight forward about their account of memory difficulties or not, and so in his view, it would have been clearly indicated. According to Dr. Woodside, there was no reason not to. The tests are not particularly onerous or even particularly expensive to do. As for Dr. Gojer’s opinion that the tests don’t tell you anything about the person’s state of mind at the time, that made no sense to Dr. Woodside because the tests are used to help you know, as an assessor, whether or not what the person is telling you is a straight forward account, or whether the person is gilding the lily either in a negative or in a positive fashion. Since there are no tests to tell us about a person’s state of mind at the time, Dr. Woodside did not understand Dr. Gojer’s rationale for not doing the tests with respect to Mr. McCaw, but his evidence that he would do so in a Not Criminally Responsible case or in a sentencing case. These tests are done anytime there is a concern regarding memory to provide the court with an objective measure.

[330] In cross-examination, Dr. Woodside agreed that objective information such as observations from family, friends or other individuals who were present at the material time can be helpful. Even more valuable would be records documenting someone’s psychiatric treatment or drug or alcohol use; for example prior objective evidence about someone’s behaviour that is in keeping with what is claimed at the time of the index offence.

[331] Dr. Woodside came across as a totally independent expert witness. I prefer his evidence to that of Dr. Gojer on this issue.

Analysis

The Law - R. v. W.(D.)

[332] Since Mr. McCaw testified, in the usual case the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (“WD”) would apply to all of the evidence. In the typical sexual assault case it would be important for me to remind myself that this is not a credibility contest. WD prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of some or all of the Crown witnesses to that of Mr. McCaw and the Defence witnesses. However Mr. Frost agreed that WD only applies to the Crown’s case. It does not apply to Mr. McCaw’s defence of automatism in that in light of R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, as I will come to, I must find that Mr. McCaw has persuaded me on a balance of probabilities that his actions were not intended or voluntary because he was in a state of automatism as a result of extreme intoxication due to the consumption of marijuana, alcohol and GHB.

[333] Mr. McCaw admitted to having sexual intercourse with Ms. K.B. but as already stated he could not say if his actions were not voluntary and that he was in an automatic state or that he was just drunk and can’t recall making a bad decision. Ms. K.B. also had no memory of how the intercourse with Mr. McCaw began. This is therefore not the typical “she said/he said” sexual assault case.

[334] In the circumstances, before considering the defence of automatism, I must consider whether or not on the evidence I do accept of the events leading up to the sexual intercourse between Mr. McCaw and Ms. K.B., and the events that followed, the Crown has satisfied me beyond a reasonable doubt that Mr. McCaw sexually assaulted Ms. K.B. and in particular that he had sexual intercourse with her without her consent.

The Law – Self Induced Intoxication

[335] In the Supreme Court of Canada’s decision in R. v. Daviault, 1994 CanLII 61 (SCC), [1994] S.C.J. No. 77, which dealt with a case where the defendant was acquitted on account of his extreme intoxication by alcohol; akin to automatism, at the time of the sexual assault. Cory J. on behalf of the majority determined that in addition to a lack of intent; mens rea, that extreme intoxication could in some cases cast doubt on the voluntariness of the act itself. At para. 66, he stated that if the mental element involved relates to the actus reus rather than the mens rea, then the result must be the same as the actus reus, which “requires that the prohibited criminal act be performed voluntarily as a willed act. A person in a state of automatism cannot perform a voluntary willed act, since the automatism has deprived the person of the ability to carry out such an act.”

[336] Justice Cory suggested a procedure for how a defendant could assert this defence, at para. 63. He held that the defendant should be called upon to establish this defence on a balance of probabilities since it is only the defendant who can give evidence as to the amount of alcohol consumed and its effect upon him. Furthermore, he held that expert evidence would be required to confirm that the defendant was probably in a state akin to automatism or insanity as a result of his drinking.

[337] Cory J. commented at para. 59 that given the minimal nature of the mental element required for crimes of general intent, even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily. He added”[i]n reality it is only those who can demonstrate that they were in such an extreme degree of intoxication that they were in a state akin to automatism … that might expect to raise a reasonable doubt as to their ability to form the minimal mental element required for a general intent office.”

[338] As the Supreme Court of Canada said in R v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at para. 35, Daviault still represents the state of the law in Canada subject to the significant restriction set out in s. 33.1 of the Criminal Code, the section that I ruled is unconstitutional.

[339] Counsel agreed that the key decision in this case it the Supreme Court of Canada’s decision in R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, where the court discussed what is required to establish the Daviault defence. At para. 156, Bastarache J., speaking for the majority, defined automatism “as a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”. He came to this definition because the medical literature he was presented with spoke of different levels of consciousness and that medically speaking, “unconscious means ‘flat on the floor’, that is, in a comatose-type state.” Involuntary action which does not stem from a disease of a mind gives rise to a claim of non-instance automatism (at para. 157) which is the defence I am dealing with, because there is no dispute that Mr. McCaw is not suffering from any mental disorder. At para. 170, Bastarache J. agreed with the classification of automatism as a sub-set of the voluntariness requirement and he added that voluntariness, rather than consciousness, is the key legal element of automatistic behaviour since a defence of automatism amounts to a denial of the voluntariness component of the actus reus.

[340] Bastarache J. established a single approach to all cases involving claims of automatism starting at para. 162. That approach is as follows:

a) the defendant must rebut the presumption of voluntariness (at para. 171);

b) the legal burden is on the defence to prove involuntariness on a balance of probabilities to the trier of fact (at para. 179);

c) in addition to an assertion of involuntariness, the defence must present expert psychiatric or psychological evidence confirming its claim (at paras. 184 and 192).

[341] The trial judge must examine all available evidence but Bastarache J. provided some additional guidance as to the type of factors that can be considered to assess this defence (starting at para. 188). These included the trigger of a psychological blow, which is not the case here; whether or not the expert testimony establishes a documented history of automatistic-like dissociate states, which if present must be given more weight than if the expert is simply confirming that the claim of automatism is plausible (at paras. 186 and 189); any evidence of bystanders (at para. 190), and whether there is evidence of a motive for the crime (at para. 191). He emphasized at para. 192 that relevant factors are not a closed category and that no single factor is meant to be determinative - in other words this Court should look at the cumulative effect of the evidence.

[342] In R. v. Daley, 2007 SCC 53, at paras. 41 – 43, the court stated that there are three legally relevant degrees of intoxication; mild, advanced and extreme. Only extreme intoxication can absolve criminal responsibility for general intent offences like sexual assault. As Mr. Frost pointed out, the defence although rare, is available in this case given my ruling with respect to s. 33.1 of the Criminal Code.

Findings of Fact

Was there GHB in the apartment Mr. McCaw shared with Mr. S.L. on July 11, 2015?

[343] Mr. McCaw’s automatism defence depends on my finding on a balance of probabilities that there was a bag with a bottle of GHB in the apartment on the night of July 11, 2015 that he found and gave to Mr. S.L. and that he and the others then consumed. It is only if Mr. McCaw consumed GHB in addition to the alcohol and marijuana that he testified to, that he could have been in a state of extreme intoxication at the time of his having sexual intercourse with Ms. K.B. I have not been persuaded on a balance of probabilities that this is the case for a number of reasons.

[344] First of all, the only source of the GHB would have been Mr. C.A. and certainly on his evidence it is possible that he left a bottle of GHB at Mr. S.L.’s apartment. His evidence however on this was very tentative both as to when this might have occurred and whether or not it did occur. At its highest, in my view, based on the evidence of Mr. C.A. alone, it was possible that he left a bottle of G at the apartment. I would not say it was likely.

[345] However, if a bottle of G left behind by Mr. C.A. was the source of the GHB that Mr. McCaw claims that he helped consume, on Mr. C.A.’s evidence he would have brought no more than a half bottle of G and he and at least some of the people in the apartment, on a date prior to July 11, 2015, consumed several caps of the GHB which would mean the bottle was less than half full when he left it there. Mr. McCaw however testified that the bottle he found was full. This was one of those facts that I found hard to believe Mr. McCaw could be so sure about. Given how sure he said he was, I was surprised that he was not prepared to mark this point with a Sharpie on a bottle and this suggested he did not want to be pinned down on this but even if as he allowed, the bottle was only three quarters full, that is at odds with the evidence of Mr. C.A.. I accept Mr. C.A.’s evidence as to how full any bottle of G he left behind would be and so this is another reason why I do not accept Mr. McCaw’s evidence on this point.

[346] I also do not believe Mr. McCaw’s evidence as to how and why he found the bottle of GHB. He testified that since the main floor of the apartment was fairly cluttered because they had been “partying”, he was “casually tidying up the clutter.” First of all there is no evidence that they had been partying in the apartment other than at most, on Mr. McCaw’s evidence, the four of them had consumed some beer in the apartment. Secondly, Mr. McCaw had been in the apartment all day and although his evidence is not clear as to when he got up, he clearly had lots of time to tidy up the clutter during the day and evening, before Ms. K.B. and Mr. S.L. returned from the pool party, if indeed it was bothering him. Thirdly, Mr. McCaw admitted that as far as he knew, Ms. K.B. and Mr. S.L. had gone up to Mr. S.L.’s bedroom to sleep. It does not take a lot of imagination to think that as a couple that they might have been engaged in sex and would not welcome Mr. S.L. being called downstairs simply to get a piece of clothing and what Mr. McCaw believed was a used bottle of water. Fourthly, if Mr. McCaw was cleaning up, given the other items lying around in the living room it makes no sense that he would call up to Mr. S.L. about the first item that he found, rather than gather up all of the items that did not belong to him. If Mr. McCaw was indeed tidying up I would have expected him to collect all of these loose items that were not his before calling Mr. S.L. down to get what he believed belonged to him. It makes no sense that he would call him down each time he found something that he believed belonged to Mr. S.L.. Fifthly, based on the photographs the downstairs of the apartment was very untidy and it seems unlikely to me that Mr. McCaw would suddenly feel the need to tidy up particularly, when based on the photographs of Mr. McCaw’s bedroom it was extremely messy with clothing, boxes and loose articles all over the floor as well.[^2] As for the common areas, both kitchen sinks were very full of dirty dishes and there were dirty dishes all over the top of the kitchen counter. The top of the stove does not appear to have been cleaned in some time and there was a black article of what appears to be clothing on the floor. In the living room there was a black and grey back pack on the floor, a grocery bag next to the white electric guitar and a greyish plastic bag in front of that and a black bag in front of the acoustic guitar. There was a brown purse or bag on the floor in front of the couch, a black and white bag on the floor in front of a speaker and finally a blue article of clothing on top of the turntable.

[347] I also prefer the evidence of Mr. M.H., Ms. K.B. and Mr. S.L., that they did not consume any GHB on the night of July 11th. I accept Mr. M.H.’s evidence that he was not familiar with GHB save that he knew it as the date rape drug and that he had never used it. That is consistent for example with the fact Mr. J.B. did not use this drug either. Although both Mr. S.L. and Mr. C.A. testified that they believed Mr. M.H. had used GHB before they had no specific recollection of this. When Ms. K.B. was asked if she consumed any her first reaction was that that would not have been good because she had consumed alcohol. She was clearly aware of the dangers of consuming both GHB and alcohol and although she could not be firm that she did not consume any GHB, she had no recall of doing so and I do not believe she would have at the time.

[348] I also find it strange that since according to Mr. McCaw the water bottle that Mr. S.L. said contained G had a cap that the cap was not used to consume the G. On the evidence that is clearly the preferred way to be sure of the dose of GHB that one is taking. It also seems incredible that they would simply consume GHB belonging to Mr. C.A. that was worth several hundreds of dollars without Mr. C.A. being there.

[349] I also agree with Ms. Garcia that given the evidence of the incident in November 2014 that if Mr. McCaw consumed as much GHB as he testified to, he would have been unconscious and potentially in medical distress. Mr. Frost argued that I should not assume that the potency of the GHB was the same in 2014 as it was in 2015 but Mr. McCaw testified that the potency seemed similar. Given Mr. McCaw testified he had consumed essentially eight doses of GHB during the night of July 11/12, 2015, I would expect that his reaction would be the same if not worse than his consuming about a third of that in November 2014.

[350] Furthermore, I find it very difficult to believe, given the near death experience that Mr. McCaw went through in November 2014 that he would consume as much GHB as he testified to. While had it been present he might have taken one or two doses, as many as seven or eight seems incredible.

[351] For these reasons I am not persuaded on a balance of probability that Mr. McCaw consumed any GHB on the night of July 11/12th.

What alcohol and/or drugs did Ms. K.B. consume on July 11/12, 2015 and what state was she in?

[352] The evidence of Ms. K.B. and Mr. S.L. is clear that Ms. K.B. was quite drunk when they got back from the pool party. Having not been persuaded that there was GHB in the apartment I find that she did not consume any GHB that night. Whether or not she went to the parking lot to smoke or to the bar once with the guys is not that important because everyone agrees that once she was on the coach she appeared to be passed out or asleep and she did not stir even though Mr. McCaw and Mr. M.H., at least for some period of time, were talking and watching TV in the same area. Furthermore I accept Mr. M.H.’s evidence that he tried to wake Ms. K.B. and Mr. S.L. before he left and was not able to. It makes sense to me that he would do so and this evidence was not challenged.

What alcohol and/or drugs did Mr. S.L. consume on July 11/12, 2015 and what state was he in?

[353] I also find that Mr. S.L. was intoxicated to some degree when he and Ms. K.B. got back from the pool party. Having not been persuaded that there was GHB in the apartment I find that he did not consume any GHB that night. Whether or not he went to the bar once or twice is not that important because everyone agrees that after he began to throw up outside the bar Mr. M.H. and Mr. McCaw had to help him up to his bedroom. Whether he was passed out or in a deep sleep does not matter. Furthermore as already stated I accept Mr. M.H.’s evidence that he tried to wake Ms. K.B. and Mr. S.L. before he left and was not able to. I accept the evidence of Mr. S.L. that he did not wake during the night until Ms. K.B. came into his room in the morning complaining that Mr. McCaw had raped her.

What alcohol and/or drugs did Mr. M.H. consume on July 11/12, 2015 and what state was he in?

[354] Mr. M.H. was not asked if he consumed any alcohol or drugs before he arrived at the apartment but he drove his van over and no one suggested that he appeared to be intoxicated when he arrived. Whether or not he brought the three or four beers to the apartment that he testified to or he and Mr. S.L. and Ms. K.B. consumed the beer that Mr. S.L. had in the apartment, the evidence of the cans and bottle in the apartment is consistent with them only having one beer each with someone possibly having a second. Whether or not Mr. S.L., Mr. M.H. and Mr. McCaw went to the bar once or twice, they were not there very long on either occasion based on the evidence of Mr. McCaw and even on his evidence that he and Mr. M.H. brought a beer each back from the bar, Mr. M.H. would have had no more than five or so beers and likely less over a period of a few hours. I have found that no GHB was consumed and so there is no reason to believe that he was very intoxicated when he left the apartment and drove to Ajax.

[355] Despite the concerns I have discussed about the credibility of Mr. M.H.’s evidence, given he was not that intoxicated I find his evidence to be the most reliable.

What alcohol and drugs did Mr. McCaw consume on July 11/12, 2015?

[356] In light of my conclusion that Mr. McCaw did not consume any G on the night of July 11th, there is no way that he could have been extremely intoxicated from the marijuana and the wine and beer alone. I considered the in-car video and the booking video to consider if either or both assisted in determining Mr. McCaw’s state of intoxication but concluded that they did not provide any assistance. I note that none of the experts were asked to comment on them.

[357] The evidence of Mr. McCaw was that he started drinking at around 4:30 p.m. and that until Mr. M.H. left at 4:00 a.m., he consumed about one litre of wine, one bottle of Stella beer, three and one quarter tall boy cans of beer and one and a half grams of higher potency of marijuana.

[358] As already stated, the evidence based on the photographs is that there were a total of three cans and one bottle of beer in the apartment at the time of Mr. McCaw’s arrest. This suggests that he exaggerated the amount of beer that he consumed. Even if I accept Mr. McCaw’s evidence as to the beer and marijuana that he consumed, on his own admission the alcohol does not seem like a great deal because as he said, he was a “fairly heavy drinker, and the marijuana was not very far out of an ordinary weekend for me.” In other words he clearly would not have been extremely intoxicated at the time he had intercourse with Ms. K.B.

When did Mr. M.H. leave the apartment?

[359] I accept Mr. M.H.’s evidence that he left the apartment at around 1:30 am. Given my conclusion that he and Mr. McCaw were not consuming G, I do not believe that they remained together until 4.00 a.m. They were not friends and had not hung out together before. Ms. K.B. was passed out on the couch in the living room where they would have had to have socialized. Furthermore I do not believe that Mr. McCaw just happened to look at his watch and remember that it was 4:00 a.m. On this point I prefer the evidence of Mr. M.H. This also suggests that Mr. McCaw did not consume as much beer as he testified to.

Analysis

Has the Crown proven beyond a reasonable doubt that Mr. McCaw sexually assaulted Ms. K.B.?

[360] As Mr. Frost submitted, the central issue on this question is whether or not the Crown has proven beyond a reasonable doubt that Ms. K.B. did not consent to having sexual intercourse with Mr. McCaw. He referred me to R v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at paras. 24-26 where the court held that the absence of consent is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching at the time it occurred.

[361] Although the principles of WD apply to the evidence of Mr. McCaw on this issue, as Mr. Frost fairly accepted, there is really no evidence of Mr. McCaw to apply this principal to as he has not been able to give me any evidence about whether or not Ms. K.B. was consenting. I would have to reject the evidence of Ms. K.B. or find that it does not rise to the level of satisfying me beyond a reasonable doubt on the issue of her lack of consent in order to acquit Mr. McCaw of the charge of sexual assault if I do not accept his defence of automatism.

[362] Mr. Frost argued that we really do not know what happened between 4:00 a.m. and 6:00 a.m. and so I have to decide, for example, if Ms. K.B. took off her clothing and engaged in consensual intercourse with Mr. McCaw in what Mr. Frost described as a primal act. The onus is on the Crown to prove the absence of consent. He submitted that if I can’t determine if the intercourse was consensual or not or if I am unable to say what happened, I must acquit. Mr.Frost conceded however that if I accept Ms. K.B.’s evidence that she believed that she was having sex with her boyfriend that this was a sexual assault.

[363] Although Mr. McCaw would not admit that Ms. K.B. did not initiate or consent to having sexual intercourse with him, there was no evidence to suggest that she had any interest in Mr. McCaw sexually. They both agreed that he was just her boyfriend’s roommate. I have found that Mr. McCaw was not as intoxicated as he claimed. He did not go upstairs and fall asleep in his own bedroom but rather ended up having sex with the only woman in the apartment.

[364] There is no doubt that Ms. K.B. drank a great deal on July 11th and I accept her evidence that she was passed out on the couch as a result. Although Mr. M.H. did not give this evidence, everyone else agrees that she was carried like a bride upstairs by Mr. M.H. who put her on the couch in the living room. Regardless of which version I accept of the chronology of events, she did not awake after that or respond to anyone even though Mr. M.H. and Mr. McCaw were socializing for some period of time in the living room only a short distance away from her. Mr. M.H. tried to wake Ms. K.B. and Mr. S.L. before he left and was not able to. I also find that she was in no position to assist Mr. McCaw in removing her clothing.

[365] I also accept Ms. K.B.’s evidence that she did not come to until she realized that someone was kissing and touching her sexually and then engaging in sexual intercourse with her. I accept her evidence that she believed it was her boyfriend Mr. S.L. and that this lasted for a few minutes; she thought five. This is consistent with the evidence she forgot to give at first at trial that she said his name a few times. He was her boyfriend at the time and this makes sense.

[366] I also find that Mr. McCaw spoke first and that when he said he was going to come or going to come inside her that this made Ms. K.B. realize that he was not Mr. S.L. and she said: “stop” or words to that effect. Although she said that it might have been under her breath, Mr. McCaw clearly heard her say something. In this regard Mr. McCaw’s evidence does not make sense. Ms. K.B. thought the person she was having sex with was her boyfriend and she was not resisting. There would have been no reason for her to speak first and say “stop” or “don’t come in me” and she would not have known that Mr. McCaw was about to come-in fact he said that he had already ejaculated at this point. This finding is consistent with my finding that Mr. McCaw was not as intoxicated as he alleged and I find that he was aware he was having sexual intercourse with Ms. K.B. before he ejaculated and that it was not Ms. K.B. speaking to him that snapped him back to reality.

[367] Given my finding that Mr. McCaw was not as intoxicated as he alleges, and in particular that he had not consumed GHB, there is no doubt in my mind that he must have known that Ms. K.B. was in no position to consent to having sexual intercourse with him.

[368] I also have the evidence from Mr. McCaw and Mr. S.L. that Ms. K.B. immediately ran upstairs and that she was naked, frantic and scared. I do not and cannot consider her prior consistent statement to Mr. S.L. but I can consider her conduct which is more consistent with her version of events than Mr. McCaw’s suggestion that they had both made a mistake by engaging in consensual sex.

[369] For these reasons I am satisfied beyond a reasonable doubt that Ms. K.B. did not consent to having sexual intercourse with Mr. McCaw and that in any event she was in no condition to consent.

Has Mr. McCaw proven on a balance of probability that he was in a state of automatism at the time that he sexually assaulted Ms. K.B.?

[370] Since I have found that Mr. McCaw did not consume any GHB on the night of July 11/12, 2015 and that he was not extremely intoxicated at the time he had sexual intercourse with Ms. K.B., he could not have been in a state of automatism at that time. Although I could therefore conclude my reasons without considering the evidence of the experts, a great deal of time was spent on the issue of automatism and whether or not it can be caused by the consumption of alcohol, GHB and marijuana. Accordingly, I will provide my comments and conclusions on this evidence even though I appreciate it is obiter.

[371] Mr. Frost argued that the fact s. 33.3 of the Criminal Code was passed and given cases like Daley, the common law clearly has acknowledged that extreme intoxication resulting in automatism does exist for general intent offences. I accept that theoretically such a defence, albeit rare, does exist but of course I must consider whether or not it applies in this case. Furthermore, there could be any number of other combinations of drugs where the evidence might be completely different than in the case of alcohol, GHB and marijuana.

[372] The position of Mr. Frost is that Dr. Gojer’s opinion, based on the hypothetical, is more consistent than not with automatism. He argued that Dr. Gojer gave cogent, compelling evidence that was internally consistent and within his expertise and given that there was no evidence to the contrary that I should accept it. Mr. Frost argued that Dr. Gojer’s evidence was uncontradicted save for two points; 1) the absorption rate of GHB in that Dr. Gojer testified that it would be immediate and Ms. Hird said it would take ten to 20 minutes, which he submitted was not a meaningful difference and the evidence of Dr. Woodside and the need for psychological testing. If by that submission Mr. Frost was suggesting that I should therefore accept Dr. Gojer’s evidence he is of course in error. The fact that a witness’ evidence is uncontradicted does not mean that the evidence must be accepted by the trier of fact.

[373] Furthermore, I do not agree that Dr. Gojer’s evidence was not otherwise contradicted. Although he agreed with Ms. Hird’s evidence that GHB and alcohol both depress the central nervous system, his evidence that Mr. McCaw could nevertheless have been acting automatically when he had intercourse with Ms. K.B. was at odds with the evidence of Ms. Hird who testified that this would not be possible. I prefer the evidence of Ms. Hird on this issue. Although I appreciate, as Mr. Frost submitted, that given the nature of GHB that there are no empirical studies on the effects of GHB on the mind and body, and that there never will be any because it would be unethical to conduct them, Ms. Hird’s evidence is the only logical conclusion from the uncontested fact that both alcohol and GHB are not selective and simultaneously depress the central nervous system. As much as they reduce alertness and the brain’s ability to process information, they are going to reduce the physical ability of an individual to function at the same time because GHB and alcohol depress the whole central nervous system simultaneously. It makes sense, in my view, that in light of this uncontested scientific evidence that a state of automatism during which a person could perform complex actions such as Mr. McCaw did would not be possible if someone was in a state of extreme intoxication from the consumption of alcohol and GHB.